PART 4
Potential Challenges
When implementing policies that protect diverse family and relationship structures, there may be opposition to the inclusion of non-normative familial types outside of the nuclear family model. Opponents may argue from various standpoints, including traditional values, religious beliefs, or concerns about societal stability.
Preemption is a broad and complex issue. This toolkit will provide a broad overview however it is recommended that you work closely with the Polyamory Legal Advocacy Coalition to avoid preemption issues. OPEN is happy to put you in touch with the Polyamory Legal Advocacy Coalition once the time has come to start drafting the bill.
Broadly speaking, preemption issues arise when state or federal laws conflict with or override local ordinances. In the context of family or relationship structure nondiscrimination ordinances, preemption challenges can be significant.
Here are strategies to respond to common opposition points:
Use empirical evidence to show the prevalence of non-normative family and relationship structures and the presence of discrimination against these communities. Present studies that demonstrate the positive outcomes for children and adults in diverse family arrangements, countering the narrative that only nuclear families and monogamous relationships can provide a stable and nurturing environment.
Highlight the fundamental principle of equality that underpins anti-discrimination laws. Emphasize that protecting diverse family and relationship structures is about ensuring that everyone (and particularly children) is treated fairly and has equal access to opportunities, regardless of their family structure or relationship style.
Point out the economic benefits of inclusive policies. For example, diverse family and relationship structures can contribute to economic stability through shared resources and mutual support. Inclusive policies can also lead to healthier, more productive communities.
Acknowledge the role of religious and moral beliefs while emphasizing that anti-discrimination laws are designed to protect all citizens, not to impose on anyone's personal beliefs. Highlight that the freedom to live according to one's values (so long as it does not cause harm to another) is a right everyone should enjoy.
Personal testimonials can be powerful in illustrating the real-life impact of discrimination and the importance of protection for diverse families. Stories from individuals who have faced discrimination can humanize the issue and create empathy.
State laws may explicitly preempt local ordinances, in key areas such as discrimination in employment and housing. In cases of explicit preemption, the statutes will directly state the municipalities cannot adopt laws in that legal area. However, other state laws may implicitly preempt local ordinances.
For instance, some states have comprehensive anti-discrimination statutes that leave little room for local variations. They are said to have occupied the field, meaning they have legislated an area of the law so robustly that the field of law is foreclosed from municipalities.
Legal Analysis: Conduct thorough legal analyses to identify potential preemption issues. Focus on crafting ordinances that address areas not explicitly covered by state law, such as public accommodations and education. This analysis is best done by trained legal experts, such as the Polyamory Legal Advocacy Coalition.
Advocacy for State-Level Change: Work with state legislators and advocacy groups to amend state laws to allow for greater local autonomy in addressing discrimination.
Litigation: If necessary, be prepared to challenge preemption claims in court, arguing for the necessity and legality of local protections.
Federal laws, such as the Fair Housing Act or the Civil Rights Act, might also preempt local ordinances. However, these laws often set minimum standards, allowing local governments to enact more stringent protections. Adding additional protected classes not recognized at the federal level can create a potential federal preemption issue for fair housing laws because federal preemption occurs when federal law conflicts with or supersedes state or local laws.
In the case of fair housing, the federal Fair Housing Act (FHA) sets forth specific protected classes, such as race, color, national origin, religion, sex, disability, and familial status. While states and localities are often empowered to provide broader protections (e.g., marital status), conflicts can arise if these additional protections interfere with federally established legal standards or enforcement mechanisms. For example, federal preemption could occur if adding new protected classes conflicts with the administrative structure of the FHA or creates burdens that impede compliance with federal regulations.
Additionally, if a local ordinance grants rights or protections that fundamentally alter the way housing providers must operate under federal rules (e.g., altering federal rules for landlord screenings or tenant selection), this could trigger a legal challenge on preemption grounds. Courts will evaluate whether federal law was meant to comprehensively regulate a particular area, and if local provisions upset that balance, a preemption claim could be valid. Thus, while adding protections is often legally permissible, ensuring these provisions do not undermine or contradict federal standards is critical to avoiding preemption challenges.
This is particularly true in areas like fair housing where a well-established federal framework exists, and state or local laws must be carefully aligned with it.
Ensure that local ordinances complement and enhance federal protections rather than contradicting them.
Reach out to the Polyamory Legal Advocacy Coalition for support.
