Even before the current crop of justices, the Arkansas Supreme Court was not overly concerned with falling on the wrong side of history when it comes to marginalized groups. Aside from a few surprising exceptions over the years — striking down the state’s anti-sodomy law in 2002’s Jegley v. Picado, for instance — their general course has always tended toward upholding the status quo.
Current members of the high court dance the same judicial jig as the justices who went before them. The only difference is, while past courts frequently played to straight, white Christians writ large, the current court seems fixated on the opinion of one person: Gov. Sarah Huckabee Sanders.
Viewed through that lens, it is unsurprising that the court reinstated an emergency rule yesterday that scratched the gender-neutral option from state-issued driver’s licenses and identification cards. The nonbinary “X” (rather than “M” or “F”) had been allowed since 2010. By early this year, 342 Arkansans had an X on their driver’s licenses. Another 174 Arkansans had state-issued IDs with an X.
But in March, Sanders proposed barring the X. “This policy is just common sense. Only women give birth, men shouldn’t play women’s sports, and there are only two genders. As long as I’m governor, Arkansas state government will not endorse nonsense,” she said.
Secretary of the Department of Finance and Administration Jim Hudson jumped on board, saying a rule change was necessary under state law and for the safety of law enforcement. (This administration has a history of using hypotheticals about safety as an excuse to do as they please.)
During March legislative meetings, proponents of the emergency rule could offer no evidence of a problem needing to be solved. In the 14 years the policy was in place, there were precisely zero reported instances of the gender-neutral designation causing any safety concerns for citizens or law enforcement. Lawmakers approved the emergency rule regardless.
The American Civil Liberties Union filed suit against the state in April on behalf of multiple Arkansans impacted by the rule change, arguing that the issue did not constitute an emergency, so enacting an emergency rule violated state administrative procedure rules.
Following a hearing earlier this month, Pulaski County Circuit Judge Patricia James struck down the new rule. James held that DFA could only change the rule with less than 30 days’ notice if DFA first “certified an imminent peril to public health, safety, or welfare,” which the agency had failed to do. James also pointed out Hudson’s argument about needing to change the rule to comply with state law was incorrect, writing:
In papers submitted in support of the emergency rule, DFA stated that the rule was “necessary in order to administer the Office’s responsibilities under Ark. Code Ann. § 27-16-1104(3), which requires that a driver’s license or identification card issued by the Office contain the person’s gender.” The Court has reviewed the statute. The statute does not say that a driver’s license must contain a gender marker matching an applicant’s gender assigned at birth. Nor does it say anything about whether applicants may or may not self-select their gender. There is no mismatch between the statute and the old policy; the old policy is not contrary to Ark. Code Ann. § 27-16-1104(3).
James ordered DFA to reinstate the prior rule and allow gender-neutral declarations on state IDs.
Attorney General Tim Griffin appealed James’ decision on June 14, and he asked the state Supreme Court to stay James’ order while the appeal was pending. Yesterday, the court obliged; in a docket entry that did not include a written order or explanation, the court unanimously stayed James’ ruling. As a result, the new DFA rule prohibiting the gender-neutral “X” on identification cards was reinstated.
Following the ruling, Griffin issued an embarrassing and misleading statement. “I applaud the Arkansas Supreme Court’s decision staying the circuit court’s unlawful order and allowing the Department of Finance and Administration to bring its identification rules into compliance with state law,” he said.
Judge James’s order was not “unlawful,” of course. She is a duly elected circuit judge, who had both personal and subject-matter jurisdiction over the case, and she entered an order that was entirely within her power to enter. She explained the legal authority involved and the rationale behind her decision, including citing the statute that gave the circuit court power to review an agency rule. Griffin’s disagreement with James’ ruling doesn’t make her order “unlawful.”
John C. Williams, legal director of the Arkansas chapter of the ACLU, was more circumspect. In a press release following the high court’s decision, Williams said he believed the law supported James’s order and said the plaintiffs and the public were “at a loss” over why the Supreme Court would grant a stay where DFA clearly failed to follow the rules for passing an emergency rule change.
While the Supreme Court’s decision yesterday was not shocking in the least given the court’s current conservative persuasion, it does illustrate why the current Supreme Court feels worse than prior courts. It’s not merely because the high court bends the knee to Sanders’ every whim; it’s also because the governor’s whims are consistently hateful and pointless, which makes the court’s fealty to her that much more depressing.
While the emergency rule is on-again/off-again, a permanent rule is making its way down the line. Public comment on the plan to bar a gender-neutral option for state IDs permanently is open through June 27.
The Department of Finance and Administration could tweak their rule based on public input, or roll with it as it is. Their draft will then go up for approval with state lawmakers at the Arkansas Legislative Council.