States Attempting to Preempt LGBT-Friendly Municipalities

As legislators across the country duke it out over a huge variety of proposed “religious freedom” (aka “right to discriminate”) bills, some municipalities are going in the opposite direction. In 2015, cities and counties from Anchorage to Little Rock to Sedona, Arizona made efforts to protect their LGBT residents by passing local ordinances that ban LGBT discrimination in some contexts.

In Georgia, where at least four bills have been introduced that would create religious exemptions from providing services to LGBT people, the city of Athens just passed a resolution asking the city manager to make recommendations on how to curb LGBT and race discrimination in local bars. In West Virginia, where a state RFRA passed the House Judiciary Committee last week, mayors in cities with LGBT antidiscrimination statutes are speaking out against the bill, and the Lewisburg city council recently approved a bill to add sexual orientation and gender identity protections to the city’s human rights ordinance. Since Indiana’s RFRA debacle last year, a handful of municipalities have stepped up to pass antidiscrimination laws that protect LGBT Hoosiers. And in Florida, where a sweeping religious exemption bill has been introduced, Jacksonville is moving forward with a proposed antidiscrimination ordinance.

Opponents of LGBT rights aren’t letting these ordinances go unchallenged. Conservative legislators are turning to preemption bills[1] as a way to overturn existing, and prevent future, LGBT antidiscrimination ordinances. Over the past year, legislators have introduced bills in Michigan, Texas, West Virginia, Missouri, Indiana, and North Carolina that would have preempted local efforts to pass antidiscrimination protections. Thankfully none of these were successful, although a preemption bill was signed into law in Arkansas last year, and Tennessee passed an antidiscrimination preemption law in 2011. Preemption bills are currently pending in Oklahoma and Virginia, and more may pop up as state legislative sessions continue.

While many preemption bills do not explicitly mention religion, they are often introduced alongside religious exemption laws, supported by religious organizations, and justified in religious terms. For example, Tennessee’s preemption law, the “Equal Access to Intrastate Commerce Act,” was passed with strong support from religious groups including the Family Action Council of Tennessee, Southern Baptist Ethics & Religious Liberty Commission, and Tennessee Baptist Convention. In Arkansas, a preemption bill was sponsored by the same legislators as a proposed state RFRA, and was promoted by a third legislator, Mary Bentley, as essential for religious freedom. Benley explained, “I don’t think…a baker that loves the word of God that’s bringing her children up to honor God and to worship God should have her business destroyed because she doesn’t want to bake a cake for somebody that’s a transgender trying to marry somebody else.” And during a Texas “Emergency Pastor Briefing” that followed the passage of a LGBT antidiscrimination law in Plano, State Representative Matt Shaheen told the assembled pastors that legislation was “being worked on” to resist the local ordinance. Shaheen and fellow Plano Representative Jeff Leach subsequently introduced a preemption bill, ostensibly to create consistency around statewide antidiscrimination provisions.

Other attempts to preempt local LGBT protections are included as part of a religious accommodation bill, such as Indiana’s pre-“fix” RFRA (although this merely subjected claims under local antidiscrimination ordinances to a RFRA analysis rather than preempting them entirely). Thus preemption laws are yet another example of the use of “religious freedom” as a sword rather than a shield. In the name of religious liberty, some states are trying not just to protect religious businesses from any requirement that they treat LGBT customers fairly—they go much farther by attempting to restrict the creation of any protections for LGBT people.

Preemption bills have long been a favored tactic of gun rights groups, as well as big businesses that wish to limit the regulation of e-cigarettes, food (think: NYC’s calorie posting and Bloomberg’s defeated soda “ban”), factory farms, and other health and environmental dangers. In recent years, preemption bills have increasingly been adopted to curtail local minimum wage increases, paid sick leave laws, and other labor protections. The tobacco industry used preemption bills to great effect in the 1980s and 90s. Bills often imposed weak regulations on tobacco use, which were either expressly or implicitly intended to establish a comprehensive regulatory scheme preempting any local attempts to pass more stringent regulations. This wolf-in-sheep’s-clothing approach is similar to that used in Indiana’s (recently-killed) SB 344, which would have totally preempted the passage of any new LGBT antidiscrimination ordinances as part of a weak and exemption-riddled state antidiscrimination law.

Lawyers and advocates should keep a keen eye out for any preemption laws introduced this session… including ones that are disguised as watered-down and exemption-rife antidiscrimination laws. While these bills may be promoted as efforts to create consistency and ease administrative burdens on statewide businesses, many anti-LGBT preemption bills are in fact back-door methods of imposing the values and beliefs of the religious far-right onto states and cities that are more welcoming of their LGBT populations.

[1] State preemption is the complex (and, let’s face it—somewhat dry) legal doctrine governing interactions between state and local law. For those interested, preemption expert Paul Diller has published a thorough analysis of the various schemes that states have adopted to balance state and municipal power. For the rest of us, suffice it to say that in a majority of states, at least some cities and counties are able to pass a wide variety of legislation, so long as this legislation does not conflict with the state’s constitution and laws. Courts have employed a variety of tests to determine when such a conflict exists, but are unlikely uphold an ordinance in the face of a state law that expressly limits local power within the relevant field.