WE ARE NOT STRUCK WITH BLINDNESS: THE ESTABLISHMENT CLAUSE AND RELIGIOUSLY MOTIVATED STATE PREEMPTION OF MUNICIPAL NON-DISCRIMINATION LAW

The City Council then passed Ordinance 119 by a six-to-two margin, approving its establishment of protections on the basis of sexual orientation and gender identity in the city's non-discrimination law, and making Fayetteville the first town in the state to extend such protections to LGBT individuals.2 Six months later, the law was invalidated. Though Justice Brandeis famously characterized states as "laboratories" of democracy, municipalities also serve as arenas for policy experimentation.6 Municipal governments are often more able to address local problems, respond directly to the concerns and preferences of citizens, and avoid the influence of spending by special interest groups than statewide governments.7 Furthermore, policies adopted locally can catalyze policy changes at the state and national level.8 Policies that prove workable and popular on small, local scales may be adopted by other cities and eventually adopted at the state level.9 This percolation of policy from cities "outwards" (to other cities) and "upwards" (to the state) is particularly observable in the civil rights sphere.10 Historically, localities have often led the charge in creating civil rights reform. In 2004, San Francisco began issuing marriage licenses to same-sex couples, four years before marriage equality would become state law in California.11 San Francisco's lead was promptly followed by Sandoval County, New Mexico; Multnomah County, Oregon; Asbury Park, New Jersey; and the mayors of both New Palz and Ithaca, New York.12 All of these decisions placed cities in direct conflict with state law, but highlighted the role that cities can play in moving forward state and national policy debates.13 Cities are also currently spearheading policy change in the areas of LGBTQ rights,14 climate change,15 public health,16 and immigration,17 among others. Recently, states have begun using preemption doctrine rather aggressively, striking down local innovations by overriding municipal legislation or withdrawing authority from municipal governments.18 This phenomenon is particularly prevalent when cities seek to expand the boundaries of civil rights protections, though it is certainly not limited to conservative state government preemption of progressive municipal legislation.19 Inevitably, tensions exist where, as in Arkansas, state legislatures and municipal governments have conflicting operative values; for example, when cities like Fayetteville seek to implement progressive legislati