As the countdown to full federal marriage equality marches towards late June, increasing numbers of gay and trans activists are asking and discussing, "What's next?" But while we're debating the issues, the opposition has already begun, and the backlash is picking up steam. Arkansas' S.B. 202 is on the verge of becoming law in Little Rock in the very near future, and as renowned gay radio host Michaelangelo Signorile reports, #ItsNotOver.
This right-wing effort to resist the increasing tide of LGBT equality began in earnest this time last year in Arizona, memorialized in S.B. 1062. The LGBT community called this effort to expand "religious liberty" a "license to discriminate" bill and, by unifying and managing a remarkably rapid full-court press, convinced Gov. Jan Brewer to veto the bill. It didn't hurt that the Super Bowl, which occurred two weeks ago, was at risk, and the Arizona business community was mobilized on the side of fairness.
Today, blinded by the euphoria of the falling of state marriage dominoes thanks to federal court decisions, including from the Eighth Circuit, which covers Arkansas, the community is distracted from the stepchildren of the Arizona bill. Kansas Gov. Sam Brownback undid state protections for its LGBT employees, Michigan tried its own "license to discriminate" bill in December, and now it's Arkansas' turn. This bill is worse in that it nullifies local LGBT protections. It was passed by the State House this past Friday, 57 to 20, after having easily exited the State Senate Feb. 9, by 24 to 8. Newly elected Gov. Asa Hutchinson, in a show of remarkable political cowardice, has stated that he will neither sign nor veto the bill, allowing it to become law in 90 days:
I recognize the desire to prevent burdensome regulations on businesses across the state. However, I am concerned about the loss of local control. For that reason, I am allowing the bill to become law without my signature.
The statement was subtitled "To Amend the Law Concerning Ordinances of 17 Cities and Counties by Creating the Intrastate Commerce Improvement Act and to Declare an Emergency." The "emergency" was the need to block any state or county ordinances from protecting the LGBT community. The proximate cause was passage of an LGBT anti-discrimination bill in Fayetteville last summer, a bill that was narrowly overturned in a referendum this past December. While some are rationalizing their support by claiming the importance of uniformity of the law across the state in order to attract business, and focusing on "murder" and "fraud," the Senate sponsor had no hesitation in saying that religious business owners should be allowed to fire gay employees.
The real problem for the LGBT community, as well as for other communities subject to discrimination, such as the disabled, veterans, and pregnant women, is that the conservative extremists have learned from history. Knowing that the Supreme Court decision in Romer v. Evans prohibits singling out the LGBT community with animus, they've decided to roll back all local antidiscrimination ordinances. They decided it was better to offend and intimidate all minorities not already covered by federal law than submit to the growing tide for LGBT equality. This derives from the similar reflexive response to marriage equality when some county clerks simply refuse to provide licenses to all couples rather than have to provide them to gay ones. As a result, this legislation, which is similar to the bill passed in Tennessee in 2011, the first of its kind, now tied up in the courts, is probably constitutional. Unless community plaintiffs can prove that the law was passed deliberately to impact its gay and trans residents rather than those residents being harmed as an indirect result of the legislation, the law will probably stand. That's a very high bar to vault.
The good news is that with the signing of the president's Executive Order 13672 last summer, all federal contractors are required to protect their LGBT employees and not discriminate in hiring. It is not a selling point to prospective businesses, which have their own federal obligations, for a state to crow about their lack of state and local antidiscrimination ordinances; rather, it helps a business know that the state is already in support of such policies, if only to relieve it from having to manage that burden on its own.
What we are seeing is simply the latest episode in the anti-modernity campaigns of the region of the country that has steadfastly refused to accept the Enlightenment and become a full part of a modern United States. While the country as a whole moves forward, we are once again hearing the language of bigotry manifesting as calls for "states' rights" (see Chief Judge Roy Moore of Alabama) and "religious freedom," inspired by the Religious Freedom Restoration Act of 1993 and the recent Hobby Lobby decision allowing corporations to act on their religious beliefs.
Ultimately a federal Equality Act will negate all these efforts at retrenchment, and in the meantime LGBT residents, particularly the trans population but increasingly the gay one as well, can depend on federal Title VII protections. Still, if the national community leadership is still looking for "What's next?" here is your answer: We've got to convince the governor to veto this bill or pay the consequences, and we need to engage the business community -- Walmart, Acxiom, Whirlpool, Tysons Food -- to make it very clear just how severe those consequences will be. We need President Clinton and presidential candidate Clinton to weigh in to let the state know just how embarrassing their behavior is, and we need HRC President Chad Griffin, who has spoken eloquently about the loneliness of growing up a gay boy in Arkansas, to mobilize his organization's resources.
Please visit Scott Wooledge's new website to see how you can help. And in spirit of Lesley (Goldstein) Gore, the gay Jewish pop icon from the '60s who died yesterday, I say: It's our party, and rather than cry, let's keep fighting.