Amputating Rights-Making

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