A legal analysis by the NYU College of Global Public Health in the December issue of the American Journal of Public Health concludes that the Arkansas law that prohibits local LGBT non-discrimination ordinances is unconstitutional.

Precisely that argument is being raised in Washington County Circuit Court, where those who favor legal discrimination against LGBT people are attempting to have a Fayetteville ordinance struck down by the state law. The Arkansas Supreme Court has upheld the state constitutionality of a local pre-emption law, but hasn’t yet heard arguments that the law is unconstitutional as an equal protection violation.


From a news release:

“In the wake of the Supreme Court’s 2015 case holding that the Constitution protects the right of same-sex couples to marry, Congress and state legislatures have proposed and enacted laws to protect people who disagree with this ruling. These laws take several forms, but they all foster inequities that are concerning for public health,” said Jennifer L. Pomeranz, assistant professor of public health policy and management at NYU College of Global Public Health and the article’s author.

One such law, Arkansas’ Intrastate Commerce Improvement Act of 2015, or Act 137, prohibits local governments from enacting civil rights protections for LGBTQ individuals that are also lacking at the state level.

Act 137 declares that its purpose is to improve intrastate commerce by requiring state uniformity for civil rights laws. However, it withdraws the authority of local governments to provide increased protections to groups of people not mentioned in the state’s civil rights act, which in Arkansas includes race, religion, national origin, gender, and disability – but not sexual orientation or gender identity. Moreover, it is not an evidence-based method to improve commerce.

“It appears that the purpose of Act 137 is to ensure that local governments cannot enact civil rights protections for LGBTQ people in Arkansas. Such state laws undermine local control, damage the economy, and create injustices that harm LGBTQ people,” said Pomeranz.

Pomeranz argues that the state law is an unconstitutional establishment of religion and a denial of equal protection of law.  The state law doesn’t specifically identify LGBTQ people as targets and Pomeranz noted this could make the law hard to challenge. But she hopes the analysis might discourage adoption of similar laws elsewhere.