CITY ORDINANCES
Sure ordinances would win, cities invite court challenge
on anti- gay discrimination not enforceable, Rutledge opinion says.
Municipalities were defiant after state Attorney General Leslie Rutledge said in a Tuesday opinion that they cannot prohibit discrimination on the basis of sexual orientation or gender identity.
Rutledge said Act 137 — which bars local governments from prohibiting discrimination on a basis not found in state law — renders unenforceable ordinances passed in Little Rock, Fayetteville, Hot Springs, Eureka Springs and Pulaski County.
“Because current state law does not prohibit discrimination on the basis of sexual orientation or gender identity, it is my opinion that Act 137 renders the five ordinances unenforceable in this respect,” she said in her advisory opinion.
Municipal officials disagreed, saying they believe their ordinances would stand up to a challenge in court.
“If she really believes this, she should go out as the attorney general for the state of Arkansas and sue all these cities that have these ordinances and say these are unconstitutional and they can’t be enforced,” said Tom Carpenter, Little Rock city attorney. “She should seek a declaratory judgment to that effect. That’s what she ought to do if she really believes that.”
Judd Deere, a spokesman for the attorney general’s office, said he had no comment when asked if Rutledge would seek a declaratory judgment.
Rep. Bob Ballinger, R- Hindsville, requested Rutledge’s opinion on the law.
Advocates for anti- bias laws have said bans on sexual-orientation discrimination are included in Arkansas Code Annotated 6- 18- 514, which regards bullying, and Arkansas Code Annotated 9- 4- 106, which involves domesticabuse shelters.
“The protected classifications are certainly there in state law and, therefore, this is not a new protected classification,” said Kit Williams, Fayetteville city attorney.
And Eureka Springs Mayor Robert “Butch” Berry said that outside of state law, the 14th Amendment to the U. S. Constitution says states may not deny citizens equal protection under the law.
“If I was a law professor, I’d give her an A for creativity,” Berry said of Rutledge’s opinion. “Rep. Ballinger didn’t ask her whether she thought this act was constitutional or not, so she doesn’t address that issue. I still feel that Act 137 is unconstitutional.”
Berry said Eureka Springs also will enforce its anti- discrimination ordinance, “if we get a complaint.”
Rutledge’s opinion was released on the same day that Fayetteville residents started voting on the city’s proposed Uniform Civil Rights Protection ordinance.
Danielle Weatherby, an assistant law professor at the University of Arkansas at Fayetteville and an advocate for the ordinance, questioned the timing.
“I believe the issuing of her opinion is a move to stonewall voters and to jeopardize the political process, and I encourage voters to disregard this opinion,” she said. “I don’t think it has any real weight.”
Deere said the timing of
the release had nothing to do with Fayetteville.
“We make every effort to turn opinion requests around within 30 days, but sometimes it takes longer depending on what else is already in the [ queue],” he said in an email.
Ballinger filed his request July 20.
The Arkansas Legislature passed Act 137 to “improve intrastate commerce by ensuring that businesses, organizations and employers doing business in the state are subject to uniform nondiscrimination laws and obligations,” according to the act.
It was sponsored by Rep. Bart Hester, R- Cave Springs. It passed the House 58- 21 and the Senate 24- 8. Gov. Asa Hutchinson let the measure become law, but didn’t sign it.
Ballinger said he requested the opinion to provide clarity.
“Essentially there’s been some confusion, created by people’s creative legal analysis,” he said. “I felt like it would be beneficial to avoid any of the confusion and have a clear explanation of the law and its application.”
He said municipalities should repeal ordinances that conflict in response to the attorney general’s opinion.
“I expect — at a minimum — for the municipalities not to enforce these ordinances,” he said. “If they do, it’s an illegal waste of taxpayer dollars.”