Terri Day and Danielle Weatherby (Barry University – Dwayne O. Andreas School of Law and University of Arkansas – School of Law) have posted The Case for LGBT Equality: Reviving the Political Process Doctrine and Repurposing the Dormant Commerce Clause (Brooklyn Law Review, Forthcoming) on SSRN. Here is the abstract:
Part I of this article frames the historical backdrop that built momentum for the civil rights movement affecting the LGBT community. Part II describes efforts to limit LGBT rights, including laws like Hester’s Law and similar legislation in other southern states that restrict cities and local governments from creating nondiscrimination protections for LGBT residents and employees. Part III of this article explains the political process doctrine, which dictates that laws that restructure the political process to obstruct the ability of minorities to enact legislation violate the Equal Protection Clause. While the application of the political process doctrine has been limited to race-based conduct and conduct restricting voting rights, Part IV considers the equal protection implications of laws like Hester’s Law that aim to preempt intrastate civil rights laws.
In conclusion, this article suggests a novel analytical framework for analyzing the constitutionality of laws like Arkansas’s Hester’s Law. Pursuant to the Dormant Commerce Clause analysis, laws that restrict municipalities from carving out anti-discrimination protections for minority groups negatively affect interstate commerce and therefore, if challenged, should be found unconstitutional.