Arkansas Supreme Court gets dragged into LGBT “protections” law question
posted at 12:01 pm on February 24, 2017 by Jazz Shaw
If you’ve been following the various “LGBT protection” law debates in the news lately you’ll probably be hearing about yet another case which has boiled over in Arkansas. This one however, doesn’t so much dive into the whole question of who gets to use which bathroom, shower or locker room so much as the rather dry subject of supremacy in state versus municipal regulation. Still, while that may sound a bit on the boring side, it’s worth keeping an eye on. As the Associated Press reports this week, a recent ruling from the state’s Supreme Court has had the effect of shooting down some of these so-called transgender protection laws without actually commenting on the constitutionality of the underlying legislation.
The Arkansas Supreme Court on Thursday struck down a city’s ordinance banning discrimination based on a person’s sexual orientation or gender identity, but it stopped short of saying whether a state law aimed at prohibiting such local LGBT protections is constitutional.
The justices reversed a judge’s decision that Fayetteville’s anti-discrimination ordinance didn’t violate a state law prohibiting cities from enacting protections not covered by state law. Fayetteville, a liberal enclave in northwestern Arkansas, is one of several cities that approved local protections for lesbian, gay, bisexual and transgender people in response to the 2015 law.
Arkansas’ civil rights law doesn’t cover sexual orientation or gender identity. In the unanimous ruling, the justices rejected the argument that Fayetteville and other cities with such ordinances have made, that such protections are covered elsewhere in state law.
So this question really didn’t hone in on the specifics of so-called “bathroom bills” at all. The city of Fayetteville decided to pass their own form of general anti-discrimination rules extending such protections to the transgender community along the same lines as more traditional classifications of race, religion or actual gender (in other words, which sex you are). Upon being challenged, a judge upheld the right of the city to do this. Now the state Supreme Court has overturned that finding which does, in effect, “strike down” the city ordinance. But it’s worth pointing out that the justices were not issuing a finding having anything to do with whether or not such protections could be extended to LGBT citizens. What they were commenting on was whether or not the state holds supremacy over municipal governments in such matters.
I’ll confess that I’m a bit out of my depth on this one and will be monitoring this case with interest. We more commonly find ourselves examining questions of federal versus state clashes and the supremacy clause in the United States Constitution. For the most part we have a pretty good handle on that. But what of the cities, towns and counties inside of each individual state? The founders were somewhat silent on that score by comparison.
A brief bit of checking shows that there could be precedent going in either direction. Take for example the national edict issued long ago regarding a maximum speed limit of 55 miles per hour. The states were forced to hold the line on that one because the federal government was threatening to reduce or eliminate their transportation funding. Once each state set the maximum speed limit at 55 there didn’t seem to be any question of whether or not individual cities and towns could raise the speed limit higher for roadways passing through their turf.
But by the same token, municipal governments often pass laws which may not be mentioned at the state level at all. Think of noise ordinances for one example. Local government frequently imposes such restrictions for the “protection” of their own citizens. The states don’t tend to make any effort to stomp all over the enforcement of such rules.
As I said, the Arkansas case will be interesting to watch as it moves forward, but not so much for the LGBT question underlying the issue. Don’t expect that to stop the protesters who will take to the streets in great numbers, turning this into yet another example of the ongoing circus. The actual question being considered is far too boring to generate such tension.