WE ARE NOT STRUCK WITH BLINDNESS: THE ESTABLISHMENT CLAUSE AND RELIGIOUSLY MOTIVATED STATE PREEMPTION OF MUNICIPAL NON-DISCRIMINATION LAW.

• Author: Ritter, Kathleen

INTRODUCTION

On August 19, 2019, the City Council of Fayetteville, Arkansas, had a ten-hour meeting. (1) 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. (2) 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. (3) Arkansas state law does not protect sexual orientation and gender identity.

Preemption is a powerful tool that states can wield against municipalities, and in recent years they have been doing so with great frequency and occasionally great antagonism. The difficulty for municipalities is that preemption regimes often leave few channels through which cities can challenge preemptive laws and litigation has often relied on federal Constitutional claims when statutory and state constitutional claims are unavailable. Typically, these claims have been based on Equal Protection theories, especially where non-discrimination ordinances (NDOs) have been implicated. However, as Professor Richard Briffault et al. note in their issue brief on preemption for the American Constitution Society, "the contemporary landscape of increasing state hostility" creates "an urgency to think[] creatively about new legal arguments." (4) One of these arguments, this Article proposes, is based on the Constitution's Establishment Clause. The path to prevailing on Establishment Clause challenges to preemption law is steep but navigable, especially if courts are willing to adjust their jurisprudence with regard to both the Establishment Clause and preemption doctrine in general.

As national politics become increasingly polarized and the federal government increasingly paralyzed, (5) much of the work to protect the civil and political rights of citizens is happening at the municipal level. Municipalities, especially blue cities in red states, have in recent years been at the forefront of passing progressive legislation across many spheres, from minimum wage provisions and anti-discrimination ordinances to sharing economy regulations and gun laws. Though Justice Brandeis famously characterized states as "laboratories" of democracy, municipalities also serve as arenas for policy experimentation. (6) Municipal governments are often more able to address local problems, respond directly to the concerns and preferences of citizens, and avoid the influence of spending by special interest groups than statewide governments. (7) Furthermore, policies adopted locally can catalyze policy changes at the state and national level. (8) Policies that prove workable and popular on small, local scales may be adopted by other cities and eventually adopted at the state level. (9)

This percolation of policy from cities "outwards" (to other cities) and "upwards" (to the state) is particularly observable in the civil rights sphere. (10) Historically, localities have often led the charge in creating civil rights reform. For example, cities were at the forefront of the push for marriage equality. In 2004, San Francisco began issuing marriage licenses to same-sex couples, four years before marriage equality would become state law in California. (11) San Francisco's lead was promptly followed by Sandoval County, New Mexico; Multnomah County, Oregon; Asbury Park, New Jersey; and the mayors of both New Palz and Ithaca, New York. (12) All of these decisions placed cities in direct conflict with state law, but highlighted the role that cities can play in moving forward state and national policy debates. (13) Cities are also currently spearheading policy change in the areas of LGBTQ rights, (14) climate change, (15) public health, (16) and immigration, (17) among others.

When municipalities seek to fill gaps they see in statewide legislation, however, they run the risk of the state claiming that the local laws are preempted by state or federal law. Recently, states have begun using preemption doctrine rather aggressively, striking down local innovations by overriding municipal legislation or withdrawing authority from municipal governments. (18) This phenomenon is particularly prevalent when cities seek to expand the boundaries of civil rights protections, though it is certainly not limited to conservative state government preemption of progressive municipal legislation. (19)

Inevitably, tensions exist where, as in Arkansas, state legislatures and municipal governments have conflicting operative values; for example, when cities like Fayetteville seek to implement progressive legislation that conflicts with more conservative state governments, like that of Arkansas. In seeking to mount challenges to state action, cities and their defenders should be alert to the justifications provided by state legislatures for preemptive action. In most cases, state preemption of municipal action is valid and almost impossible to challenge, as will be discussed in Part II.B. On occasion, however, state preemption laws may run afoul of the federal Constitution. Preemptive legislation that is discriminatory, that unduly burdens vulnerable populations, or that is based on impermissible motivations--such as the establishment of religion--can and should be challenged. As Justice Hoffman of the Supreme Court of California observed in 1971 in Parr v. Municipal Court".

When we take our seats on the bench, we are not struck with blindness, and forbidden to know as judges what we see as men; and where an ordinance, though general in its terms, only operates upon a special race, sect or class, it being universally understood that it is to be enforced only against that race, sect or class, we may just conclude that it was the intention of the body adopting it that it should only have such operation and treat it accordingly. (20) Justice Hoffman's observation is as important now as it was in 1971. Throughout their history, courts in this country have been asked to distinguish between pretext and prejudice in the service of upholding the Constitution. In confronting legislation with an apparently religious motivation, even when that legislation claims to have a secular purpose, as most preemption laws do, courts should be able to exercise judgment in deciding not to defer to the purposes proffered by lawmakers. Arkansas' preemption of Fayetteville's NDO presents just such an opportunity to probe legislative motivation in the context of state-municipal preemption.

This Article proceeds in three parts. Part I considers the doctrine of state preemption and the current landscape of state preemption of local power, focusing on the increase in state use of preemption in the last few years. Part II provides an overview of Establishment Clause jurisprudence, the state of the Supreme Court's current practice regarding the Establishment Clause, and the elements of an Establishment Clause claim under the Court's various tests. Part II also presents Arkansas' Intrastate Commerce Improvement Act ("Act 137") as a case study and suggests that, where evidence of impermissible religious legislative motivation exists, the Establishment Clause could provide an alternative to Equal Protection and other federal constitutional claims for challenging preemptive laws. Part III considers how well an Establishment Clause claim against Act 137 would fare, concluding that the probability of the bill being struck down on Establishment Clause grounds under current case law is low. As such, Part III proposes a revised Establishment Clause standard which borrows from Equal Protection case law. It suggests that, under this revised standard, an Establishment Clause claim against Act 137, and other bills with analogously suspect motivations, would have a much greater chance of being struck down. Part III also suggests that the current spate of aggressive preemption activity could potentially be mitigated if courts rethink their approach to state-local relations and preemption generally.

1. Blue Cities, Red States: Preemption and Progressive Policies

   1. Recent Use of Preemption by States

      While preemption has long been a useful mechanism for states to advance legitimate state interests in uniformity and to push back against local parochialism, it has, of late, become a tool of conservative state government opposition to progressive local interests. (21) According to a 2018 study published by the National League of Cities (NLC), state legislatures have "consistently ... stricken down laws passed by city leaders in four crucial areas of local governance: economics, social policy, health and safety." (22)

      The use of preemption by states to curtail local innovation has become rampant, with one scholar describing the amount of preempted legislation as having reached "epidemic proportions." (23) Both demographic and political trends indicate that many cities will continue to become more Democratic while their state governments remain in Republican control, suggesting that the use of offensive preemption to control progressive policy innovation at the municipal level will not abate any time soon. (24) But this new preemption is not solely the product of demographic trends and the preponderance of Republicancontrolled state governments. Especially when red states seek to restrain blue cities, many preemptive bills can be traced to conservative think tanks and nonprofits, such as the American Legislative Exchange Council (ALEC) and the National Rifle Association...