Cities Are Fighting Back Against Arkansas’ Anti-Gay Discrimination Law

Earlier this year Arkansas lawmakers passed a bill that was intended to make it illegal for city governments to grant LGBT rights protections, but some cities are fighting back and are refusing to stop enforcing those LGBT-inclusive ordinances.

The legislation, known as SB 202 or the ”Intrastate 30 Commerce Improvement Act,” makes it unlawful for local municipalities to pass nondiscrimination laws that exceed what has already been established at the state level. For Arkansas that means no LGBT rights protections. The bill sailed through the Arkansas legislature in February, and despite a number of prominent civil rights groups calling on Governor Asa Hutchinson to veto the legislation, Hutchinson allowed the bill to become law without his signature.

While lawmakers justified the legislation as being a matter of housekeeping to make sure that business law was as clear as possible to maximize outside investments, LGBT rights groups pointed out that, as was the case with a similar law in Tennessee, the legislation was actually a reaction to local city governments like Eureka Springs passing LGBT-inclusive nondiscrimination ordinances and was, essentially, a move to prevent an expansion of LGBT rights. There is perhaps one thing that state lawmakers didn’t bank on when they enacted this legislation though, and that was that the local governments would refuse to bow down and repeal those ordinances.

The AP reports that Eureka Springs, which has already voted to keep the ordinance once, is considering how to move forward from here, while Little Rock, Hot Springs and Pulaski County officials are saying their ordinances, which aren’t quite as extensive as Eureka Springs’ but do protect LGBT people from discrimination by official agencies and vendors, are saying they’ll continue to enforce them. They argue a pretty convincing case for the ordinances, and one that will put state lawmakers in a very difficult position if they do decide to take the counties to court. 

For one, the counties argue that as there is no express ban on LGBT rights protections in Arkansas, and that there are anti-sex discrimination protections in place in state law, and therefore their ordinances don’t exceed state protections but just enumerate LGBTs explicitly. Given that the EEOC has just ruled that sexual orientation is covered under federal sex discrimination protections, this reading of state law would appear to be somewhat bolstered by that fact.

In addition, the counties are offering a very clever gambit: if the state will take them to court it will have to move against LGBT rights protections and by doing so it will reveal the anti-LGBT animus that was behind SB 202 in the first place, something that could imperil the state’s own case against the ordinances and could lead to legal action countering that move.

Thirdly, they are pointing out that businesses probably aren’t going to be put off by their ordinances. Reports the AP:

“I haven’t heard from anyone who has said we won’t bid on city services if we have to check the box,” said David Watkins, city manager of Hot Springs, which approved its ordinance in May. “I don’t really anticipate any pushback because I can’t imagine a business wanting to do business with public money basically saying they will discriminate against the LGBT community.”

Still lawmakers have indicated they are prepared to go to court over the ordinances, likely spurred on by religious right groups who aren’t pleased at the local level hold-outs and are pushing for a legal fight to really hammer that discrimination home.

If this fight did go to court, Arkansas would be back in the press for its perceived war on LGBT rights, like it was earlier this year over the “right to discriminate” law it watered down but still passed.

In addition, the ACLU has previously indicated it believes SB 202 is an unconstitutional deprivation of equal protection–an argument that, again, could be strengthened with the recent EEOC ruling on sex discrimination. In essence, this is probably a fight that Arkansas lawmakers can’t win, and that if they have any care for what is good for the state, that they shouldn’t try to win either.

Photo credit: Thinkstock.


Danuta W
Danuta Wabout a year ago

Thank you! Great article!

Siyus Copetallus
Siyus Copetallus3 years ago

Thank you for sharing!

Vikram S.
Vikram S3 years ago

Thanks for sharing.

Kathryn Irby
Past Member 3 years ago

Good Luck with that! Thank you for sharing.

Ingo Schreiner
Ingo Schreiner3 years ago


Holly Potthoff
Holly Potthoff3 years ago

You would think the state where the Clintons came from would have a more liberal approach to this topic. I guess in this case, the apples (Clintons) DO fall very far from the tree.

Paulinha Russell
Paulinha Russell3 years ago

Thank you

joseph c.
Joseph L C3 years ago

Steve-----Call a law either anti-gay law or anti gay-discrimination law.
Anti-Gay Discrimination law means?

Rosemary Diehl
Rosemary Diehl3 years ago

It was such an important law that it was tacked on to an intrastate commerce bill (got to love those conservatives and their backhanded moves). I say hip hip hooray that in a red state there are those that buck the system!

Cathleen K.
Cathleen K3 years ago

By all means, Arkansas, take these cities to federal court, where you will be told that your state law in unconstitutional and must be repealed! Is there any point at which conservative voters are going to start getting pissed off at the amount of tax payer money their politicians waste on frivolous law suits?

For all of you conservatives who've been cheering on those Christian county clerks who are refusing to issue marriage licenses, here's the flip side, so you can't complain about these towns defying the state!