Justices again hear sides on anti-bias edict
Earlier ruling said city effort to protect gays violated law
A Fayetteville ordinance that prohibits discrimination against gay, lesbian, bisexual and transgender people was argued for the second time before the Arkansas Supreme Court on Thursday, as part of a yearslong legal battle between the city’s attorneys and the state government.
From the opening minute of oral arguments, several of the justices, led by Rhonda Wood, questioned their renewed jurisdiction over the matter.
“I really don’t understand why we are here today,” Wood said, before asking Arkansas Solicitor General Nicholas Bronni if the correct action would be to simply reverse and dismiss the case this time.
Bronni agreed that the justices could opt to dismiss the case, but he said the case on appeal also presented bigger legal questions about whether courts should “conduct inquiries” into legislative actions.
Almost two years ago, the state’s highest court ruled in a 7-0 decision that the city’s Uniform Civil Rights Protection Ordinance violates a state law prohibiting counties and municipalities from extending protections to groups of people not included in the state’s nondiscrimination laws.
However, the justices then remanded the case to Circuit Judge Doug Martin of Fayetteville, who then, in September 2017, denied a motion by Attorney General Leslie Rutledge to halt the ordinance.
Martin’s decision to allow the continued enforcement of the nondiscrimination ordinance wound up on appeal back before the Supreme Court.
“Didn’t we essentially declare that this ordinance is void?” asked Justice Karen Baker.
The Arkansas Civil Rights Act of 1993 protects people from discrimination on the basis of race, religion, gender, national origin and disability — but the law does not cover discrimination on the basis of sexual orientation or gender identity. After the Legislature passed Act 137 in early 2015 — the law that prevented cities from expanding upon the protections in state law — several cities that had already enacted ordinances protecting gay and transgender people said they would continue to enforce their ordinances because other state laws, including an anti-bullying statute, mention
gender identity and sexual orientation.
Those cities include Eureka Springs and Little Rock.
Fayetteville voters approved the Uniform Civil Rights Protection Ordinance through a popular vote in September 2015, and the following March, Martin issued his first ruling, which said the ordinance did not violate Act 137. The Supreme Court’s first decision in the case overturned that ruling.
On remand, proponents of the Fayetteville ordinance have argued that Act 137 itself is unconstitutional. They sought to subpoena the sponsors of the law, Sens. Bob Ballinger, R-Hindsville, and Bart Hester, R-Cave Springs, and requested discovery for documents related to the legislation.
Bronni argued Thursday that such requests violate lawmakers’ constitutional privileges against being questioned about “speech or debate” in their legislative chambers.
Garrard Beeney, an attorney for the group Parents and Friends of Lesbians and Gays, argued for the ordinance before the high court. He said Martin was right to deny an injunction against the law because the two sides had not settled on what information would be appropriate to seek from lawmakers about their intentions in passing the law. He said some statements and documents — such as social media posts — were not covered by legislative privilege.
Justice Robin Wynne, more so than his colleagues on the bench, appeared to be willing to entertain that argument.
“We certainly believe that there’s an executive privilege and we believe that there’s a legislative privilege,” Wynne said, referring to the court’s precedent. “What that is, we’re not sure.”
The high court did not offer a ruling on the case Thursday and will likely deliberate over the case for several more weeks.
Two justices, Josephine “Jo” Hart and Courtney Goodson, recused from hearing the case. They were replaced at oral arguments Thursday by Special Justices Hugh Alan Finkelstein and Maureen Hazinski Harrod.