Nineteen years ago, the United States Supreme Court in Romer v. Evans struck down Colorado’s notorious Amendment 2, a state constitutional provision that revoked all local ordinances prohibiting discrimination based on sexual orientation and forbade state and local governments in Colorado from enacting or enforcing such protections in the future. The Supreme Court found that Amendment 2’s purpose was to make lesbian, gay, and bisexual people “unequal to everyone else” and that such “a bare…desire to harm a politically unpopular group” rendered the law unconstitutional.
However, the Supreme Court left undecided whether sexual orientation and gender identity are protected classes under the Constitution, which would mean that governmental actions that target LGBT Americans for differential treatment would be presumed invalid and upheld only if they withstand so-called “heightened judicial scrutiny,” a very difficult standard to meet. The marriage equality cases before the Supreme Court this year provide the Court with the perfect opportunity to make this much needed holding. Indeed, various states’ recent attempts to undermine gains in LGBT equality underscore the importance of the Supreme Court’s making such a ruling.
In addition to recently proposed or enacted state laws to invite LGBT discrimination under the guise of “religious freedom,” Arkansas and Tennessee have passed anti-LGBT laws that revoke all local prohibitions on discrimination against LGBT people and prohibit enforcement of any such measures in the future, despite the Supreme Court’s decision in Romer. These states have attempted to maneuver around Romer through the tactic of targeting LGBT people without naming them explicitly. The new laws forbid local governments to provide protection against discrimination for any group of people not protected under state law . However, Arkansas, Tennessee (and 27 other states) currently have no statewide protections against sexual orientation discrimination. They and 30 other states have no protections against gender identity discrimination. The intent of Arkansas and Tennessee’s new laws is essentially the same as that of Colorado’s two decades ago: rollback LGBT legal protections and impede future efforts at achieving them.
Upon sponsoring the bill, Arkansas State Senator Bart Hester repeated the decades’ old mantra of LGBT opponents -- he did not want LGBT people to have “special rights.” His original version of the bill that the State Senate passed (but the House amended) went so far as to declare a statewide “emergency” making the bill “immediately necessary for the preservation of the public peace, health, and safety” -- even though none of Arkansas’ 75 counties or 500 cities at the time even had a local ordinance prohibiting LGBT discrimination. Fayetteville had passed such an ordinance in August 2014, but a local referendum repealed it in December. Since the statewide bill was introduced, Little Rock and Eureka Springs passed local protections that will become unenforceable later this year when the bill goes into effect.
Kansas Governor Sam Brownback took action this February with motives similar to those of lawmakers in Arkansas and Tennessee when he rescinded an eight-year-old Kansas Executive Order prohibiting discrimination against LGBT state employees, just three months after same-sex couples began marrying in the state. His purported intent was to align government workers’ protections with those available statewide to everyone. However, like Arkansas and Tennessee, Kansas has no statewide statutory protections against sexual orientation or gender identity discrimination. Fear immediately spread among the state’s LGBT employees. A local Topeka Human Relations Commissioner explained that LGBT state workers “were already very cautious about public attention,” but their “concerns” were suddenly “multiplied exponentially.” LGBT state employees who want to marry now risk losing their jobs if they do so. Those who married before Brownback rescinded the Executive Order are already vulnerable.
The solutions to these problems are clear. As we continue to undertake the lengthy processes of achieving protections under all states’ laws, Congress must act now to prohibit discrimination nationwide against LGBT people in all aspects of our lives. This June, we need a ruling from the Supreme Court that the US Constitution guarantees LGBT Americans in every state the right to live free from their government treating them as less than equal because of who they are or whom they love. An April 2015 Reuters/Ipsos poll showed Americans support marriage equality nationwide 52% to 32%, a gaping 20 point margin. The same poll showed that 55% of Americans opposed employers’ being able to use their religious beliefs as a basis for refusing to hire someone, and that 54% of Americans opposed businesses’ being able to refuse service to someone on the same basis. The time for equality under the law is now.
John Lewis and Stuart Gaffney, together for nearly three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. John is the MEUSA Director of Legal & Policy; Stuart is the MEUSA Communications Director.
No on 2 image from 1996, courtesy of Lambda Legal.
American flag with crucifix image courtesy of Shutterstock.
Rainbow clock image courtesy of Vanilla Design Store; edited by MEUSA.