Local Anti-Discrimination Ordinances and Their Implications to Federalism
This is a writing sample from Scripted writer Austin Cromack
While efforts to establish greater protections for individuals on the basis of sexual orientation is not a new phenomenon,[1] the topic has been brought to the public spotlight in recent years thanks to two significant Supreme Court cases: Obergefell v. Hodges and Masterpiece Cakeshop v. Colorado Civil Rights Commission.[2] The doctrinal questions unanswered by these opinions created significant space for States and their localities to try and resolve. The federalism issues that resulted are what this essay seeks to explore, specifically as localities have attempted to enact anti-discrimination ordinances against the will of the State in which they belong.
I first give an overview of Obergefell and Masterpiece Cakeshop before I discuss how States and localities are often at odds in their responses to these decisions. After exploring the resulting implications to federalism, I consider them in light of Heather Gerkin’s Federalism All the Way Down.[3] I then explore these federalism implications under the federalism framework presented by Richard Briffault’s What about the “Ism’?[4] Lastly, I argue when States and localities are at odds concerning anti-discrimination ordinances, States should prevail in order to properly strike a balance of power that does well to vindicate the principles of federalism from a formalist perspective.
[1] Gay Rights, History (Jul. 3, 2019), available at: https://www.history.com/topics/gay-rights/history-of-gay-rights.
[2] Obergefell v. Hodges, 135 S.Ct. 2584 (2015); Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Com’n, 138 S.Ct. 1719 (2018).
[3] Heather K. Gerkin, Forward: Federalism All the Way Down, 124 Harv. L. Rev. 4 (2010).
[4] Richard Briffault, "What About the 'Ism'?" Normative and Formal Concerns in Contemporary Federalism; 47 Vand. L. Rev. 1303 (1994).
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