We Are Not Struck with Blindness: The Establishment Clause and Religiously Motivated State Preemption of Municipal Non-Discrimination Law

Ritter, Kathleen

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.

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Columbia Journal of Gender and Law

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July 21, 2020