‘Pernicious and unnecessary' laws make life harder for ordinary Arkansans

Yahoo

09-05-2025

Arkansans protest several bills introduced by Sen. Kim Hammer, R-Benton, that would change the citizen-led ballot initiative process Tuesday, Feb. 11, 2025, at the Arkansas Capitol. (Tess Vrbin/Arkansas Advocate)
Over the course of the recently concluded session of the Arkansas Legislature, the media have reported in bits and pieces on various measures passed by lawmakers that infringe on Arkansans' rights, target marginalized groups, erode the wall of separation between church and state, limit free speech and squash democratic participation, usually with the stated purpose of solving 'problems' that only exist in the minds of Republican legislators.
But if we stop and take a moment to look back on their collective handiwork over the last five months, the destructive scope of these pernicious laws — and the expensive litigation they're likely to trigger — becomes breathtakingly clear.
Elementary school librarians face possible suspension of their teaching licenses if they don't lock away books about 'sexual ideology,' which is not defined but will almost certainly be aimed at books with LGBTQ themes. Schools will be left to figure out how to comply.
Doctors who provide gender-affirming care to transgender patients could open themselves up to malpractice suits unless they read their patients a lengthy screed about their care that contains information that's untrue, misleading, or merely misguided opinion sprung from the fevered imagination of Rep. Mary Bentley, R-Perryville, who has made targeting transgender Arkansans her pet cause.
The process for collecting signatures for ballot initiatives will now be so cumbersome, convoluted and arduous that direct democracy — a cherished constitutional guarantee in a state whose motto is 'The People Rule' — could be a dead letter for grassroots groups without deep pockets.
Voters who choose to vote by absentee ballot because they find it more convenient will now have to find a witness to sign their ballot paperwork, impacting minority, disabled and elderly voters in a state that already has tragically high rates of ballot rejection — but almost no voter fraud.
Schools and public buildings will have to display a mostly Protestant version of the 10 Commandments, a practice the U.S. Supreme Court forbade 45 years ago. And discrimination against LGBTQ people will be protected by state law if done on religious grounds, including refusing to place kids in adoptive homes with LGBTQ parents.
The state plans to start suffocating death row inmates with nitrogen gas, an experimental execution method that's cruel and unusual, and will trigger years of litigation. And noncitizens without legal documentation who commit crimes will face harsher criminal penalties than citizens, up to 20 more years in prison with no chance for parole. Never mind that, like U.S. citizens, noncitizens are protected by the 14th Amendment's Equal Protection Clause.
As you might expect, this tsunami of ill-conceived nonsense is keeping folks at the Arkansas ACLU busy — sorting through which of these new laws are likely to cause the most immediate harm, working with prospective clients, and preparing litigation to counter unwise and unconstitutional laws that state taxpayers will pay to defend.
'Some people ask us what we do to relax and refresh at the end of the session, and I say, 'File lawsuits,'' jokes Holly Dickson, the ACLU's executive director, who likens dealing with legislators on civil liberties issues to 'trying to do ballet across quicksand.'
Dickson would not comment on when, or over what, the ACLU might sue, other than to say that 'we'll announce any litigation when it's filed.' But the Arkansas League of Women Voters has already filed a federal lawsuit to strike down the new restrictions on citizen-led ballot initiatives, calling them an unconstitutional restraint on core political speech.
Some of the baloney Arkansas legislators offered up to feed their base this year may have limited effect because it's impractical, illogical or will be quickly laughed out of federal court.
For instance, even a cursory reading of the 1980 U.S. Supreme Court decision Stone vs. Graham that forbade posting of the 10 Commandments in public schools — or the scathing decision by a federal judge in Louisiana last November invalidating a similar 10 Commandments law — would have shown legislators that this bill would lead directly to a spanking in federal court. Yet, all but two Republican legislators plunged ahead, because, as Dickson puts it, 'they know that voting against the 10 Commandments is going to affect their reelection.'
Likewise, the law that prevents the state from taking action against employers who discriminate against transgender people for religious reasons runs straight into a 2020 U.S. Supreme Court decision — penned by that well-known radical leftist Justice Neil Gorsuch — that the Civil Rights Act precludes employment discrimination based on gender identity.
Another new law allowing people to sue if they — gasp — encounter transgender people in a restroom or changing area in a public facility may be difficult to use because, thankfully, legislators didn't authorize the genitalia inspections necessary to establish someone's gender identity in a court of law.
The law expanding malpractice suits against doctors providing gender-affirming care was clearly designed to intimidate them into not treating their patients. Rather than forcing them to give their patients inaccurate information — problematic on First Amendment grounds — it merely entices them to do so by providing a 'safe harbor' against lawsuits if they comply.
But Arkansas doctors who provide this care have largely stood up to that pressure by ignoring the 'safe harbor' provision in a similar law passed in 2023 targeting gender transition.
'The game of chicken doesn't really play well with people who aren't chicken,' Dickson said.
Unfortunately, legal challenges take time, and some of these ineffectual laws may be hard to challenge because until someone can demonstrate actual harm, it could be difficult to get cases into court.
In addition, so-called facial constitutional challenges, which seek to block laws before they go into effect, also have a high bar — made higher by the Arkansas Supreme Court's recent supineness in standing up to legislative excess as well as a new law that takes original jurisdiction in these cases away from judges in Pulaski County Circuit Court, who have been willing to say no to legislators.
Perhaps the most disheartening thing about all of this is how unnecessary it is. None of this sound and fury does anything to make the day-to-day lives of ordinary Arkansans easier or better; indeed, it wastes money on litigation that could be better spent on things that would.
And what we've seen over the past five months also plays fast and loose with the oath every legislator took when they were sworn into office: 'I do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of Arkansas, and that I will faithfully discharge the duties of the office of upon which I am now about to enter.'