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SB202: short-term loss, long-term gain 

Many understandably believe the enactment of SB202 — the legislation that bars local governments from creating protected classes not presently recognized in state law — to be a significant step back for LGBT rights in Arkansas. Indeed, as veteran gay writer Michelangelo Signorile wrote last week, some argue that the stealth nature of SB202 could well create long-lasting national hiccups for the LGBT movement. Instead, no matter the disappointment and anger voiced by its opponents in recent days, the battle over SB202 may well aid the continued advancement of LGBT rights in Arkansas both politically and legally.

First, as with every effort to limit LGBT progress towards equality in recent years, LGBT Arkansans have spoken up about the direct and indirect ramifications of such actions on them and their families, as was shown in the grassroots effort encouraging Governor Hutchinson to veto the legislation. Just as important as this empowerment of LGBT Arkansans is their allies' feeling called to step up and speak out on a key civil rights issue of their time. While much of this dialogue occurs on social media, increasingly those allies are in positions of political influence. Eureka Springs Alderman James DeVito's quick action in advance of the House's passage of SB202 means that a key hurdle to the inevitable court challenge to the legislation should be overcome. (The bill's proponents were thoroughly disingenuous about a Tennessee case they cited as support for the Arkansas legislation since a Tennessee court never considered the merits of the case, saying instead that the plaintiffs lacked standing.) Moreover, the eloquent arguments by allies like Representatives Clarke Tucker (D-Little Rock) and Warwick Sabin (D-Little Rock) aided in holding down the margin of victory in the state House meaning that the bill's emergency clause failed. The extra months before the law goes into effect means that more local governments can join Eureka Springs in passing antidiscrimination ordinances. Along the way, even in places where such efforts are unsuccessful, hundreds of LGBT Arkansans and their allies will speak up for LGBT rights in their communities.

Second, as SB202 worked its way through the legislative process, it also became more legally fragile. The proponents of SB202 were well-advised to avoid any specific references to sexual orientation or gender identity in the legislation itself because US Supreme Court's 1996 Romer v. Evans decision that struck down a Colorado state constitutional amendment barring such local ordinances said the effort was clearly driven by "animus" toward gays and lesbians; the explicit inclusion of "sexual orientation" in the text of that amendment made the case clearer. As Justice Anthony Kennedy wrote in the Romer opinion: "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." (It is noteworthy that, early in the legal road of the Romer case, statewide "uniformity" of laws — the justification for SB202 — was shot down as a legitimate state goal.)

In the state Senate debate over the measure, issues of sexual orientation and gender identity were generally absent, just as the proponents with an eye to later court challenges hoped. Opponents of the legislation focused wholly on the bill's intrusion into "local control" as a strategy to provide cover to members of the GOP majority political cover to not vote in favor of the measure. In the state House, however, the "animus" driving the legislation became quite clear with Rep. Mary Bentley (R-Perryville) accusing opponents of the legislation of "hiding behind an acronym" and, after spelling out the categories included in LGBT, essentially dehumanized lesbians, gays, bisexual, and transgender Arkansans, saying "those are the things that we're talking about." Even if the text of the legislation avoids explicit references to sexual orientation or gender identity, the legislative history is now clear why SB202 came into being, making Romer a strong precedent for opponents.

Moreover, the legal landscape may soon change to the advantage of LGBT legal advocates. While most are focused on the substance of the coming decisions on marriage equality, those cases — to be handed down by the US Supreme Court this summer — may also, for the first time, make sexual orientation a legal category worthy of heightened scrutiny, treating sexual orientation more like gender. If some strengthening of the standard occurs, laws that discriminate in any way (and for any reason) against LGBT individuals would suddenly face a decidedly higher burden to survive. The SB202 case could well be one of the first cases considered in a new legal environment.

While the outcome on SB202 — and especially the radio silence of the Arkansas business community which continues to fail to understand the clear linkage between a welcoming social environment and the rise of "creative class" jobs — is unquestionably disappointing in the short term, the battle over SB202 may well serve as an important impetus for maintaining the LGBT movement's forward progress post-marriage equality.

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