Arkansas Passed Rabidly Anti-Gay Legislation. So What!

The Arkansas bill is vile, but it’s clearly unconstitutional.

Photo by MyImages-Micha/Shutterstock

It’s terrible! The Arkansas Senate has passed a bill that would prohibit towns and municipalities from making laws that protect LGBTQ people from discrimination. If this law is allowed to stand, it will have consequences far beyond the protections, or lack thereof, for queers in certain towns and cities that seek to shield them from being fired from their jobs or otherwise discriminated against—it would strike a blow at their very ability to organize and to participate in the democratic process.

That’s why the Supreme Court made such laws unconstitutional nearly 20 years ago, in Romer v. Evans, which ruled that Colorado couldn’t prevent municipalities from passing nondiscrimination ordinances to protect gays in their borders. There is no reasonable reading of the current legal climate that suggests the Romer decision will be revisited, much less that it could possibly be overturned. While it’s true that the Arkansas legislature drafted its law in a way that differs superficially from the law the court struck down in Romer, by banning municipalities from protecting classes that state law has not protected, the results are identical because gays are the only class this would apply to. That means the overwhelming likelihood is that the law would not withstand a legal challenge. The Arkansas law is functionally DOA. The only question is how much time will pass before it’s found to be unconstitutional, and how many gay Arkansans, if any, it will negatively impact before that happens. While this may be a temporary worry for that community, the fact is that this law’s ability to harm gays is severely limited by both time and geography.

The similarity this new law bears to a much older, settled case might seem like an important thing for readers to be made aware of in the coverage of this legislation. But articles have largely omitted this important context (or slipped it in near the end of the story, almost as an afterthought), allowing it to seem as though this is a pressing matter of LGBTQ equality, rather than a case of mostly toothless political grandstanding by anti-gay legislators.

The lack of context in media coverage of stories relating to the LGBTQ community (particularly in cases where it makes the stakes of a story seem more urgent), is hardly a new phenomenon. Often it’s even more egregious than this—at least the Arkansas bill was actually passed by that state’s Senate. Not so in the case of the infamous “Don’t Say Gay Bill” in Tennessee. Not only was that proposed legislation never actually passed, the lone state representative behind the bill was so unpopular, he was eventually defeated in a Republican primary.

Liberal and conservative politicians alike are guilty of proposing legislation they cannot pass in order to play to their bases. Sometimes, this can even have positive results, prompting new conversations and serving as a starting point for negotiations—but news coverage ought not to treat symbolic conversation starters as if they were real laws, or unconstitutional power grabs by state legislatures as if they are potentially legitimate. Advocacy groups also promote these legislative tempests-in-teapots to keep the public’s attention on their issue—this is their job, but it doesn’t mean the media should report each manufactured outrage.

Among politicians, activists, and the media, only the media is tasked with informing the public. In an environment of shrinking budgets and the relentless pressure of deadlines, reporters may cut corners, reporting on the actions of politicians or the press releases of activist groups without fully investigating such stories before they run them—or perhaps some do so cynically, in order to drive traffic. Whatever the cause, it’s essential to provide context that allows the public to understand the stakes. News consumers need to know the difference between policies that could have a real impact on LGBTQ workers and ones that never stood a chance of passing or of being found constitutional. Too often, readers and viewers have no way to know which stories are truly urgent and which aren’t. If we journalists must cover the latter, let’s at least make it clear what the stakes really are, and whether there actually are any.