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. Mulkey5 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’s 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 Act12 (Act 137), a statute that prohibits “[a] county, municipality, or other political subdivision” of Arkansas from “adopt[ing] 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 Act16 (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 Tennessee20 — 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.23 Howe and other plaintiffs challenged HB 600’s constitutionality, but the Tennessee Court of Appeals dismissed the suit for lack of standing.24 By 2013, Montana, Nebraska, Michigan, and Oklahoma had considered adopting similar legislation.25
In 2015, Arkansas adopted a comparable restructuring law when it passed Act 137. Act 137 prohibits any Arkansas political subdivision from “creat[ing] a protected classification or prohibit[ing] discrimination on a basis not contained in state law.”26 Excepted from this prohibition is any “rule or policy that pertains only to the employees of a county, municipality, or other political subdivision.”27 Act 137’s stated purpose is to “ensur[e] that businesses, organizations, and employers doing business in the state are subject to uniform nondiscrimination laws and obligations.”28
Act 137 was proposed shortly after the city of Fayetteville, Arkansas, adopted an ordinance preventing discrimination on the basis of sexual orientation.29 Seeming to draw an inference from this chain of events,30 the Act’s opponents protested — even before the Act was passed — that the Act was designed to target LGBT people, as sexual orientation is not a protected classification under the Arkansas Civil Rights Act of 1993.31 While debating the Act in the Arkansas House of Representatives,32 the Act’s proponents emphasized (1) that the Tennessee Court of Appeals had already determined that the statute was constitutional,33 (2) that local government ordinances might infringe business owners’ religious liberties,34 and (3) that the debate about the merits of legislation that prevents discrimination on the basis of sexual orientation should occur at the state level.35
Since its adoption, Act 137 has continued to prove contentious. Act 137 did not go into effect until July 22;36 but by that time, seven Arkansas cities and counties — Little Rock, North Little Rock, Pulaski County, Conway, Marvell, Eureka Springs, and Hot Springs — had adopted ordinances that seem to conflict with the Act by prohibiting discrimination on the basis of sexual orientation.37 In defense of their ordinances, the cities and counties asserted that Act 137’s definition of “state law” is broad and encompasses two instances where discrimination on the basis of sexual orientation is prohibited — an anti–school bullying law and a law that applies to domestic abuse shelters.38 On July 1, Arkansas Attorney General Leslie Rutledge issued an advisory opinion indicating that Act 137 repeals ordinances that conflict with the Act even if they were passed before the Act became law, but that opinion didn’t address whether any of the existing ordinances actually conflicted with the Act.39 By early September, Fayetteville voters had begun voting on a proposal to enact another city ordinance that would prevent discrimination on the basis of sexual orientation.40 In response, Project Fayetteville, an advocacy group, filed a lawsuit seeking to enjoin the vote, and Arkansas Attorney General Rutledge issued a second opinion, this time affirmatively stating that Act 137 preempts and repeals the existing ordinances.41 Nevertheless, on September 8 Fayetteville voters approved their new ordinance.42
If Act 137’s opponents decide to challenge the Act, they can advance two theories as to why it is unconstitutional. First, invoking “rational basis with bite” review, they can argue that Act 137 was passed solely out of animus toward LGBT people.43 Second, they can look to the political process doctrine and assert that Act 137 contains the same defects that spoiled the political restructuring laws invalidated in Mulkey and Hunter.44 Regardless of the theory that the Act’s opponents invoke, an equal protection challenge is likely to fail. But there might be opportunity for compromise. Although less swift than a judicial victory, legislative reform could be possible in light of recent developments in Arkansas. To achieve such reform, Act 137’s opponents should seek to balance their search for protection with the proponents’ desire for uniformity.
Washington v. Davis and United States v. Carolene Products Co.45 are two of the Supreme Court’s foundational equal protection cases. In Davis, the Court held that “facially neutral state action would draw only ordinary rational basis review so long as it was not enacted with discriminatory intent.”46 In Carolene Products, Justice Stone penned his famous footnote four, wherein he indicated that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”47 These cases gave birth to two fundamental questions in equal protection law, both tied to the countermajoritarian problems posed by the Equal Protection Clause: First, when and how should the Court go about searching for discriminatory intent? Second, when has the political process failed in such a way as to require judicial intervention?48
The Court has usually sought to resolve these difficult questions using tiers of scrutiny. Under conventional equal protection analysis, a challenged law is subject to one of three types of scrutiny: strict scrutiny, intermediate scrutiny, or rational basis review.49 Strict and intermediate scrutiny are triggered only when a law targets a suspect classification.50 Concerns about legislative intent and the dangers of the political process underlie this doctrinal approach. Whether a classification triggers heightened scrutiny is determined in part by whether the relevant group is politically powerless,51 and tiers of scrutiny in turn help courts “smoke out” illegitimate intent.52
The Court, though, has deviated from this analytical approach in two ways. First, many scholars have argued that the Court has used rational basis with bite to search for illegitimate discriminatory intent.53 Beginning with Moreno, continuing in City of Cleburne v. Cleburne Living Center, Inc.,54 and culminating in Romer v. Evans,55 the Court invalidated state actions while purporting merely to employ rational basis review56 — review that is supposed to be “exceedingly deferential . . . [and under which] legislative classifications are presumptively constitutional.”57 In light of the perceived distance between these cases’ purported standard of review and their results, they appear to support more searching judicial inquiry in appropriate cases.
Second, the Court developed the political process doctrine for those situations where a facially neutral law allocates governmental power in a way that nonneutrally disadvantages a specific group.58 In Mulkey and Hunter, the Court struck down laws that fit into this mold.59 In Seattle School District No. 1, the Court reaffirmed these cases.60 But more recently, in Schuette, Justice Kennedy wrote a plurality opinion that cabined Seattle School District No. 1.61 Given (1) this cabining, (2) the minimal amount of political process case law, and (3) the absence of a majority in Schuette, the current scope of the political process doctrine is unclear.
If Act 137’s opponents challenge the Act’s constitutionality, they might rely upon both of these less conventional approaches to equal protection. They have already emphasized similarities between Act 137 and the Colorado constitutional amendment — Amendment 2 — that the Supreme Court struck down in Romer using (probably) rational basis with bite.62 And these laws do in fact share many traits. Both reallocate decisionmaking authority to a higher governmental level. Both focus on antidiscrimination law. Both were enacted after at least one local government in each state had passed legislation preventing discrimination on the basis of sexual orientation.63 And a perceived need for statewide uniformity provides justification at least in part for both.64
Despite these similarities, Act 137 will almost certainly survive rational basis with bite review because it is facially neutral. To prevail using rational basis with bite, Act 137’s opponents must demonstrate that the law was motivated by animus.65 Yet the Supreme Court has never found animus where there was no evidence in the statute or in the legislative record that the law was designed to target a specific group.66 No one disputes that the text of Act 137 provides no such evidence. And although the Act’s proponents did indicate during the Arkansas House debate that concerns about the scope of LGBT rights were on their mind,67 they also expressed willingness to consider LGBT-protective legislation — just at the state level.68 Thus, rational basis with bite — an already rarely (if ever) invoked doctrine — is unlikely to bear fruit for Act 137’s opponents.
At first glance, the political process doctrine seems like a better fit for a challenge to Act 137. After all, the key obstacle to a rational basis with bite challenge is the Act’s facial neutrality, and in both Mulkey and Hunter, the statutes were facially neutral with no smoking-gun legislative history. Moreover, Act 137 engages in political restructuring, just as the laws in Mulkey and Hunter did. Yet unlike the law in Mulkey (section 26), Act 137 does not foreclose new antidiscrimination legislation at the state level.69 And unlike the law in Hunter (section 137), Act 137 has blanket applicability.70 Thus, it would be difficult to argue that Act 137 embeds a “right to discriminate into state law” or imposes a “special burden” similar to the one in Hunter on any particular minority group attempting to use the political process. Add other obstacles, such as the cloud that Schuette cast over the doctrine71 and the fact that the Court has not actually struck down a law using the political process doctrine for over forty-five years, and using the political process doctrine becomes not merely a hard fight for Act 137’s opponents, but probably a losing one.72
Despite legal obstacles, Act 137’s opponents are not without options — options that have some upsides.73 In questioning Act 137’s constitutionality, the Act’s opponents may have overlooked opportunities for compromise.74 After all, the fact that the Court’s jurisprudence has pushed the Arkansas legislature75 to craft Act 137 in a broad manner means that many groups may desire legislative reform. In just the housing context, for instance, those who may want local protection could include “political [minorities], . . . those with children or dogs, . . . tenants seeking more heat or better maintenance from landlords, [and] those seeking rent control, urban renewal, public housing, or new building codes.”76 Nor are veterans protected under the Arkansas Civil Rights Act of 1993.77 Of course, that coalition building is theoretically possible does not mean it will be easy,78 but even the proponents of Act 137 might not be completely satisfied with the statute in light of recent events. In particular, the number of local governments in Arkansas that have enacted antidiscrimination legislation since the Act was passed has increased, indicating that Act 137 might actually be promoting disuniformity.79
Act 137’s opponents are of course not limited to seeking reform of the Act itself. They have already considered a popular referendum.80 The Act’s opponents might also propose a bill directly addressing discrimination on the basis of sexual orientation.81 They could seek to persuade businesses to voluntarily adopt policies prohibiting discrimination on the basis of sexual orientation.82 And they themselves could even take advantage of political restructuring — by seeking reform at the federal level.83 Yet as a starting point, Act 137’s opponents should propose a reformed Act that allows local governments in each region of Arkansas to cooperate to establish regional antidiscrimination laws.84 Such an approach would achieve a form of balance between the two sides’ goals, and might even be preferred by those Act 137 proponents who are conflicted about the Act’s diminishment of local authority.85 This reform would not end discrimination, but it would be a step forward.