Academic journal article Harvard Law Review

Equal Protection - Political Restructuring - Arkansas Passes Statute Prohibiting Local Governments from Creating New Protected Classifications - Intrastate Commerce Improvement Act

Academic journal article Harvard Law Review

Equal Protection - Political Restructuring - Arkansas Passes Statute Prohibiting Local Governments from Creating New Protected Classifications - Intrastate Commerce Improvement Act

Article excerpt

EQUAL PROTECTION--POLITICAL RESTRUCTURING--ARKANSAS PASSES STATUTE PROHIBITING LOCAL GOVERNMENTS FROM CREATING NEW PROTECTED CLASSIFICATIONS,--Intrastate Commerce Improvement Act (Act 137), Ark. Code Ann. [section][section] 14-1-401 to -403 (2015).

What happens when a law substantially burdens a minority group, but is facially neutral? In Washington v. Davis, (1) the Supreme Court held that it would not subject facially neutral state actions to heightened scrutiny unless the actions were taken with discriminatory intent. (2) Even before Davis, the Court had rarely struck down facially neutral statutes on equal protection grounds. In one such case, United States Department of Agriculture v. Moreno, (3) the Court found legislative history evidencing discriminatory intent. (4) In another two, Reitman v. Mulkey (5) and Hunter v. Erickson, (6) no such legislative history existed. Rather, the laws struck down in Mulkey and Hunter engaged in political restructuring--the shifting of decisionmaking power from one branch or level of government to another or from one sort of process to another within the same branch or level--in a way that disproportionately affected racial minorities. (7) Many scholars believe that Moreno remains valid today. (8) And the Court reaffirmed Mulkey and Hunter'% core principles post -Davis in Washington v. Seattle School District No. 1. (9) But the Court's other major case in the Mulkey-Hunter line--Schuette v. Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality by Any Means Necessary (BAMN) (10) --cast uncertainty on the scope of these cases. (11) Thus, whether and when facially neutral political restructuring laws with disproportionate impacts violate the Fourteenth Amendment remain difficult constitutional questions.

Recently, the Arkansas legislature passed the Intrastate Commerce Improvement Act (12) (Act 137), a statute that prohibits "[a] county, municipality, or other political subdivision" of Arkansas from "adopting] or enforc[ing] an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law." (13) Act 137 does not expressly target any group, and Arkansas asserts that the Act's purpose is to ensure that businesses are subject to uniform nondiscrimination laws throughout the state. (14) Nevertheless, critics of the Act claim that the law is the product of animus directed toward LGBT people. (15) Act 137's opponents will probably fail if they mount an equal protection challenge. However, in questioning the Act's constitutionality, Act 137's opponents may have overlooked opportunities for compromise. Reform of the Act may be possible, especially if the Act's opponents are willing to balance their search for legislative protection with the proponents' desire for uniformity.

Arkansas's Act 137 is not the first of its kind. In fact, Act 137 is modeled after a Tennessee statute: the Equal Access to Intrastate Commerce Act (16) (HB 600). In 2010, Belmont University, a government contractor for the city of Nashville, Tennessee, announced that the award-winning head coach of its women's soccer program, Lisa Howe, would not return for the 2011 season. (17) Players on the team alleged that Howe had been fired for revealing that she was a lesbian and expecting a child with her partner. (18) In response to the incident the Nashville Metropolitan Council enacted an ordinance "to prohibit city contractors from discriminating on the basis of sexual orientation or gender identity." (19) Shortly thereafter, the Tennessee legislature--spurred on by the Family Action Council of Tennessee (20)--passed HB 600. (21) HB 600 amended Tennessee law (1) to specify that the state's definition of "sex" "refers only to the designation of an individual person as male or female as indicated on the individual's birth certificate" (22) and (2) to prohibit local governments from adopting laws that deviate from the state's antidiscrimination laws. …

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