We Are Not Struck with Blindness: The Establishment Clause and Religiously Motivated State Preemption of Municipal Non-Discrimination Law

Abstract

On August 19, 2019, the City Council of Fayetteville, Arkansas, had a ten-hour meeting. More than a hundred citizens lined up to share their thoughts on Ordinance 119, a proposed regulation that had become a source of great public debate in the town. Only after they had all spoken did the meeting adjourn at 3:30 AM. The City Council then passed Ordinance 119 by a six-to-two margin, approving its establishment of protections on the basis of sexual orientation and gender identity in the city’s nondiscrimination law, and making Fayetteville the first town in the state to extend such protections to LGBT individuals. Six months later, the law was invalidated. The Arkansas General Assembly preempted Fayetteville’s legislation, making it outside of the city’s authority as a municipality to create protected classes beyond those that exist at the state level. Arkansas state law does not protect sexual orientation and gender identity.