Bias rule breaks law, justices say
Case returns to Circuit Court
An ordinance passed by Fayetteville voters protecting people from discrimination based on their sexual orientation and gender identity violates Act 137 of 2015, which prevents cities from enacting such protections, the Arkansas Supreme Court ruled unanimously Thursday.
The court declined to rule on whether Act 137 was constitutional. Instead, it remanded the issue back to Washington County Circuit Court, which will decide the issue. A ruling in favor of the state would uphold the law, while a ruling in favor of the city could reinstate the ordinance, Fayetteville City Attorney Kit Williams said.
The Supreme Court’s decision reverses the Circuit
Judge Doug Martin’s ruling in March 2016 that the ordinance did not violate Act 137, because the state already had protected people from discrimination based on sexual orientation and gender identity in a law on bullying and a law on domestic violence. That had been the city’s argument.
The court ruled Thursday that the ordinance intended to “extend” protections, given its use of the word “extend” in its language.
“In essence, Ordinance 5781 is a municipal decision to expand the provisions of the Arkansas Civil Rights Act to include persons of a particular sexual orientation and gender identity,” Justice Josephine Linker Hart wrote in the court’s opinion. “This violates the plain wording of Act 137 by extending discrimination laws in the City of Fayetteville two classifications not previously included under state law.”
Act 137 does not refer to the Arkansas Civil Rights Act, which the Legislature passed in 1993 to protect certain people from discrimination in employment, housing, voting and other activities. The law covers discrimination based on race, religion, national origin, gender, or the presence of any sensory, physical, or mental disability. The ordinance refers to the Arkansas Civil Rights Act when defining terms within it.
“I’m pretty proud of our court right now,” said Bob Ballinger, R- Hindsville, who had asked Attorney General Leslie Rutledge to review whether the ordinance was in violation of state law.
Ballinger added that he expected the court to rule in favor of Act 137.
“We’re not giving up the fight,” said Adella Gray, a City Council member who helped design the bill. “It’s too important.”
Gray said many people noted being discriminated against based on their sexual orientation and gender identity when the city proposed a broader nondiscrimination ordinance in 2014 — one that was passed by the City Council but rejected by voters.
“We obviously believe that the circuit judge had made the correct interpretation of the law,” Williams said, adding that the Supreme Court’s ruling “is their final decision and we just have to live with it, no matter what.”
Williams will argue against Act 137’ s constitutionality in the Circuit Court.
Act 137, passed in February 2015, dictates that no municipality or county can expand its protected classes to include classes of people not already specified in state law. Attorneys for Fayetteville had argued that two different state laws already protected people from discrimination based on sexual orientation and gender identity and that the city ordinance was clarification.
The City Council approved the ordinance in June 2015 and sent it to city voters, who approved it in September 2015.
Protect Fayetteville, a group formed to oppose the first ordinance, sued and the state intervened. The group had opposed the ordinance on grounds that it could compel people to do things they opposed for religious reasons. The state appealed after the Circuit Court ruled in favor of the city.
Attorneys for the state have argued it has a vested interested in establishing laws that facilitate commerce — ensuring that businesses face uniform nondiscrimination policies in Arkansas — that makes Act 137 constitutional.
Act 137 is unconstitutional, Williams argued, citing the Romer v. Evans U. S. Supreme Court decision in 1996 that struck down a voter- approved Colorado constitutional amendment that prohibited municipalities from protecting people from discrimination based on their sexual orientation.
Williams said Act 137 did not specify what classes could not be protected but would not avoid being implicated by what he sees as the precedent set in Romer v. Evans.
“They’re playing games,” Williams said of the broader language of Act 137. “It’s my job to unmask them.”
A person should not be fired, denied services or kicked out of an apartment because the person is gay, bisexual or transgender, Williams said.
“We believe that is unfair discrimination, and that is why Fayetteville enacted this ordinance,” he said. “That is why we will continue to defend this ordinance.”
“Their behavior has been criminalized in the past,” Williams said of people who are gay, bisexual or transgender. “They have been discriminated against. They should be a protected class under the Constitution so that discrimination against them will end.”
Outside of Fayetteville, Eureka Springs passed an ordinance protecting people from discrimination based on their sexual orientation and gender identity. Little Rock, Hot Springs and Pulaski County were among entities that passed more limited ordinances protecting their own employees and contractor employees from discrimination based on sexual orientation and gender identity.
Act 137 allows for cities to extend protections beyond those contained in state law for their own employees, which cities used to argue they could pass their more limited ordinances.
Little Rock Mayor Mark Stodola said Thursday that he believed his city’s ordinance would not be affected by the Supreme Court’s decision and that it was not in violation of Act 137.
Stodola said Little Rock’s ordinance had been in effect since April 2015 and that no one had filed any complaints against the city because of it.
“You don’t know what somebody might try to allege, but I don’t think we’re impacted by the decision,” Stodola said. “That doesn’t mean people can’t try to challenge it.”
Judd Deere, spokesman for Rutledge, said the attorney general’s office was reviewing the court’s ruling and had not determined whether it should challenge other municipalities’ laws. Rutledge had said in advisory opinion in 2015 that she believed the ordinances were prohibited by Act 137.
Rutledge released a statement Thursday saying she is grateful for the court’s decision.
“Act 137 requires that discrimination protection be addressed at the state level and be uniform throughout the state,” the statement read.
“To be clear on that topic,” Deere said in a phone interview, “the attorney general does not believe anyone should be discriminated against, including the LGBT community, but that questions specifically should be addressed by the General Assembly, since they make the laws in this state.”
For Fayetteville, the group that campaigned for the ordinance, expressed disappointment on its Facebook page Thursday and announced that it would hold demonstrations today.
“Please make and bring supportive signs reminding our LGBTQIA community that we stand by them, that Fayetteville is and will remain a safe place, a beacon of hope,” the post reads. “This is not over.”