Monday, May 20, 2024

Eureka!: New Ordinance Key in Upcoming Challenge to Pro-Discrimination Bill

Early today, I wrote about how SB202, sponsored by Sen. Bart Hester (R-Cave City), contained the seeds of its own eventual demise at the hands of a federal court.  At the time of posting that story, however, I did not realize that the bastion of progressiveness when it comes to sexual orientation, Eureka Springs, passed its own an anti-discrimination ordinance last night.

While that ordinance is a great thing in and of itself, both for the people of the town and as proof that some parts of Arkansas remain progressive and wonderful, the actual impact of the ordinance is much larger than you might expect.

In Romer v. Evans, the supporters of the amendment argued that their amendment did not deprive gays and lesbians[foot]As an aside, I’m using “gays and lesbians” in these posts as shorthand for all non-heterosexual identities.[/foot] of rights; it merely put them on equal footing with other groups and classes of people.  The Supreme Court, in rejecting that argument, wrote:

The State’s principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons. So, the State says, the measure does no more than deny homosexuals special rights. This reading of the amendment’s language is implausible.


Sweeping and comprehensive is the change in legal status effected by this law. So much is evident from the ordinances the Colorado Supreme Court declared would be void by operation of Amendment 2. […] The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.

The Court went on to note specific instances where a municipality or county had enacted an anti-discrimination ordinance that included sexual orientation and/or sexual identity, which were immediately made null and void by the passage of the amendment.  That, the Court concluded, was concrete evidence that the amendment did not merely put gays and lesbians on the same footing as everyone else, but rather deprived them of rights that they already had.  Worse still, the Court said, was the fact that the amendment–just like Hester’s bill–prohibited anyone from trying to use the political process at the county/municipal level to reinstate those rights that the amendment took away.

In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2’s prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State’s view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.

Thus, because the effect of the amendment in Romer was to repeal existing protections and to preclude gays and lesbians from using anything short of state-level politics to re-obtain those protections, the amendment was unconstitutional.

With the passage of Eureka Springs’ ordinance, SB202 functions much the same way as the amendment in Romer.  The prohibition against seeking local-governmental protections was already built in, but Eureka Springs has now made the other prong of Romer relevant in our discussion.


An additional wrinkle, which I mentioned in the update to the previous post, is that technically Arkansas law does not protect against age discrimination; only federal law does that.  So, while the passage of SB202 would not repeal any existing anti-age-discrimination ordinances that I am aware of, it would theoretically prohibit anyone from seeking to pass such ordinances in the future.

Most likely, however, the possible inclusion of workers over the age of 40 in the broad sweep of SB202 is irrelevant.  Certainly, this bill could not prohibit someone from bringing a claim under the federal age-discrimination laws.  Because those folks have federal protection, there is not nearly as much need for local protections, no matter how overreaching the laws might seem to be at the state level.

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