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Preempting Civil Rights

April 3, 2015

Michael G. Bare

by Michael G. Bare
Program Manager/ Policy Analyst
Preemption Watch; a program of Grassroots Change


“The nation’s largest lesbian, gay, bisexual, and transgender civil rights group, Human Rights Campaign… wants to see language added to the ‘Religious Freedom Restoration Act’ that explicitly says that these laws cannot be used to undermine civil rights laws at the state or local level”

Sarah Warbelow, legal director, Human Rights Campaign.” – USA Today, 3/30/15 

The “preemption” of local civil rights protections is a far more serious threat than most of us realize. Since January, there have been a slew of new bills in both the US Congress and state legislatures which contain preemptive language: a form of policy that, although it may set minimum protections for public health and safety, including civil rights, also prevents local jurisdictions from passing and enforcing stronger protections.

This year, preemption is being used especially aggressively by the opponents of public health (and in this case, civil rights) across issues as diverse as paid sick days, e-cigarettes, and fracking.

We believe that communities’ rights to set higher local health, safety, and civil rights standards is a critical part of improving policies, building grassroots movements, and creating positive social change, regardless of the issue being addressed. We know this upsurge in preemptive legislation is primarily the work of the opponents of both public health protections and civil rights protections who are more powerful in the state legislatures than in the thousands of local communities across America, so state preemption is their way to undermine progressive legislation in particular and local democracy in general.

Beyond the relentless threat of preemption in public health, state preemption has recently become a serious concern in civil rights as well. In February 2015, HB1556 was introduced in the Texas House, and would preempt local non-discrimination ordinances such as those in Austin, Dallas, Fort Worth and Houston, and tacitly targets LGBT people, who are neither protected under federal law nor at the state level in Texas. Similar laws have been introduced and adopted in other states, and this is where our concern grows. Among other things, discriminatory policies have clear negative health effects: there is a growing body of public health research that connects anti-LGBT policies to negative health outcomes for not only LGBT people, but their heterosexual peers as well.

What is particularly alarming is the acceleration of preemption proposals epitomized by the recently passed Religious Freedom Restoration Act (RFRA) in Indiana. Although widely covered in the news media, what has been glaringly absent is a discussion of how the Act may preempt local anti-discrimination ordinances, thereby rolling back critical protections for local citizens and visitors while disempowering counties, cities and the people themselves.

While undermining local ordinances that protect LGBT residents from discrimination, the Indiana RFRA also may allow businesses to sue local governments over their anti-discrimination ordinances, with the potential of forcing local taxpayers to pay their legal fees. And there are similar laws in place already in other states, including Alabama, Arizona, and Florida.

Although as a result to grassroots backlash, Indiana Governor Pence asked the state Legislature to revise the Act, which he has now signed; it is not clear if those changes will contain a so-called “savings clause” that clearly states that current and future civil rights ordinances will not be preempted. And similar proposals which appear to be both discriminatory and preemptive continue to move in other states, including a “revised” bill passed in Arkansas (HB 1228) and another introduced in North Carolina (HB 348, which their Governor is also promising to veto), we are concerned that preemption of local anti-discrimination ordinances is on the rise.