Amputating Rights-Making

Anthony Michael Kreis

Volume 69, Issue 1, 95-118

In a majority of states, it remains legal to deny people housing, employment, or services because 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 antidiscrimination laws in a number of discrete (and typically liberal) cities. 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 a handful of other states have offered similar bills. How should courts treat neutral laws adopted by states that amputate municipal civil rights-making powers? This Article argues that courts should use political restructuring doctrine, evolving LGBT rights jurisprudence, and the landmark decision Arlington Heights v. Metropolitan Housing Development Corporation, to void municipal civil rights preemption laws as constitutionally deficient.

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