Amputating Rights-Making

24 Pages Posted: 11 Mar 2017 Last revised: 2 Aug 2019

See all articles by Anthony Michael Kreis

Anthony Michael Kreis

Georgia State University - College of Law

Date Written: February 22, 2017

Abstract

In a majority of states, it remains legal to deny people housing, employment, or services on the basis of their sexual orientation or gender identity. The LGBT community has taken great strides to push back against the harms of discrimination, successfully securing municipal anti-discrimination laws in discrete jurisdictions. While an individual’s right to enjoy full, equal citizenship should not depend on their zip code, hard-wrought municipal protections are a crucial step toward achieving more robust civil rights protections.

Hostile state legislators in Arkansas, North Carolina, and Tennessee crafted laws to prohibit localities from protecting classes of people beyond state law with the aim to block LGBT civil rights ordinances. Legislators in six states have offered similar bills. How should courts treat facially neutral laws adopted by states that amputate municipal civil rights-making? This Essay argues that taken together, political restructuring cases, evolving LGBT rights jurisprudence, and the landmark decision Arlington Heights v. Metropolitan Housing Development Corporation, offer a path to void states’ municipal civil rights preemption laws as constitutionally deficient.

Keywords: employment discrimination, fair housing, constitutional law, legislation, law and society, lgbt, civil rights, anti-discrimination, equal protection, state and local government, lgbt rights, preemption

Suggested Citation

Kreis, Anthony Michael, Amputating Rights-Making (February 22, 2017). 69 Hastings Law Journal 95 (2017), Available at SSRN: https://ssrn.com/abstract=2930560

Anthony Michael Kreis (Contact Author)

Georgia State University - College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

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