Too Clever By Half: The Fatal Flaw That Will Doom Bart Hester’s Pro-Discrimination Bill (UPDATED)

If you have been following along with the 2015 Cirque de Bigoterie[foot]aka, the wingnut fringe of the legislature[/foot], you likely saw that the deformed brainchild of Sen. Bart Hester and Rep. Bob Ballinger, SB 202, passed the Senate yesterday.

The bill, disingenuously titled, “An Act to Amend the Law Concerning Ordinances of Cities and Counties by Creating the Intrastate Commerce Improvement Act,” purports to be a pro-business measure that will “improve intrastate commerce by ensuring that businesses, organizations, and employers doing business in the state are subject to uniform nondiscrimination laws and obligations.”  Specifically, it prohibits any municipality or county from passing any anti-discrimination measure “that creates a protected classification or prohibits discrimination on a basis not contained in state law.”

Or, to put it more bluntly, it prohibits cities and counties from extending anti-discrimination protections to gays and lesbians.

How is that going to improve intrastate business, you ask?  Good question. It basically requires one to assume that there are Arkansas businesses who would love to expand/relocate to more profitable areas, but are too afraid to do so unless and until they know for sure that the new market is not going to suddenly stop them from being able to discriminate against homosexuals.

Even assuming such businesses exist–as I’m sure Bart Hester does[foot]Because he is a bigot who wants to discriminate against homosexuals, and he assumes others do, too.[/foot]–it remains unclear how pandering to them is going to improve business within the state.

But that’s not really why Hester included the language about improving business. Nope, that language was included solely because the drafter of this bill thought that he or she had come up with a clever way to get around the U.S. Supreme Court’s holding in Romer v. Evans.

You see, the problem–which either Hester or the drafter of this hateful piece of legislation has figured out–is that the Supreme Court has made it harder over the years to discriminate against homosexuals directly.  In Romer, the Court struck down an amendment to the state constitution that prevented a city or county from passing an ordinance that extended anti-discrimination protection to gays, lesbians, and bisexuals, writing:

[The amendment’s] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

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[The amendment] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.

Based on this, the Court found that, even under the rational-basis test, where the state only needed to show some rational relationship between the measure and the stated purpose, the law was unconstitutional.

So, at the very least, the Court has made clear that states cannot simply pass a “We Hate Gays” law that discriminates solely for the sake of discriminating. By including the reference to “intrastate business,” Hester is attempting to shoehorn a rational basis into his otherwise obviously unconstitutional bill.

But here’s the thing: the bill specifically applies only to anti-discrimination measures that protect people “on a basis not contained in state law.”  State-law bases are, broadly speaking: race, gender, national origin, religious affiliation, and disability. The only thing left–at least in terms of a group that a municipality might possibly attempt to protect in this day and age–is sexual orientation/identity. [UPDATE: See bottom of post for a slight wrinkle to this part.]

As the Court explained in Romer, however, in determining whether a law is motived by an improper animus or purpose, “[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.”  To that end:

[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare … desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

It’s all well and good that SB202 gives lip service to “intrastate business,” but that is nowhere near sufficient to allow the bill to survive judicial review when it is challenged.  Assuming the bill passes and is signed, the Republican majority in the Arkansas legislature will have, yet again, passed something that is obviously unconstitutional, exposing the state to litigation.  Ask Jason Rapert how those things tend to play out.

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UPDATE: A fellow attorney notes that Arkansas law does not actually protect against discrimination based on age. Only federal law does that. So Hester’s bill, in addition to prohibiting cities from protecting homosexuals from discrimination, would also prohibit cities from protecting older workers. That doesn’t change the underlying point of this post, however; it simply means that there is more than one way to successfully challenge this bill in court if it becomes law. Great job, Bart. Really top-notch legislatin’.