As a reaction to the Supreme Court’s historic marriage equality decision earlier this summer, many Southern state legislators opposing the trend toward LGBT-protective laws have proposed legislation that would essentially prohibit municipalities from carving out new antidiscrimination protections for the LGBT community. Conservative Senator Bart Hester spearheaded the passing of one of these “anti” antidiscrimination laws in Arkansas, and states like Texas, West Virginia, Michigan, and Oklahoma are not far behind. These “Hester-type laws” are strikingly similar to the Colorado amendment struck down by the Romer v. Evans Court 20 years ago. Both the Colorado amendment and the new wave of Hester-type laws implicate the precise concerns that the Court’s limited application of the political process doctrine was designed to protect. They restructure the political process in a way that obstructs the LGBT community—and only that community—from achieving beneficial legislation at a local level. Since equal access to the political process is a right guaranteed by the Constitution, this article first submits that Hester-type laws would not pass constitutional muster under the political process doctrine. Despite the perfect doctrinal fit, however, it is questionable whether the political process doctrine survives post–Schuette v. BAMN.
Alternatively, this article suggests a novel and groundbreaking argument for invalidating Hester-type laws under the Court’s Dormant Commerce Clause jurisprudence. As recognized in Heart of Atlanta Motel v. U.S., private discrimination in public accommodations does affect interstate commerce. Assuming that LGBT-friendly businesses will flee states with Hester-type laws and migrate toward states with more robust protections for the LGBT community, this article submits that Hester-type laws create a problem of economic isolationism, which in the aggregate could negatively impact interstate commerce.
It is not uncommon for a constitutional doctrine to undergo a metamorphosis. Just as the principles of due process transformed from economics to personal liberty to match the needs of the time, so too should the doctrine of the Dormant Commerce Clause evolve from protecting equality in interstate commerce to protecting equality in public accommodations for the LGBT community.
Terri R. Day & Danielle Weatherby,
The Case for LGBT Equality: Reviving the Political Process Doctrine and Repurposing the Dormant Commerce Clause,
81 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol81/iss3/2