Future unclear for Fayetteville's latest anti-discrimination law

FAYETTEVILLE — The future of a citywide law shielding gay, lesbian and transgender residents from acts of discrimination remains in doubt, even if voters ratify a Uniform Civil Rights Protection ordinance later this year.

Six of eight members of the City Council endorsed Fayetteville's latest anti-discrimination law Tuesday, setting up a Sept. 8 special election.

But uncertainties remain on whether the ordinance is allowed under a state law the Arkansas Legislature approved — without Gov. Asa Hutchinson's signature — in February.

“I expect that we will be sued once the state law goes into effect,” City Attorney Kit Williams said Tuesday.

Act 137, also known as the Intrastate Commerce Improvement Act, came as a direct result of another anti-discrimination law the Fayetteville City Council approved in August but voters repealed Dec. 9. Sen. Bart Hester, R-Cave Springs, introduced the act as Senate Bill 202.

The state law, set to take effect July 22, restricts cities and counties from enacting or enforcing "an ordinance, resolution, rule or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law."

The Arkansas Civil Rights Act of 1993 prohibits discrimination based on someone's race, religion, gender, national origin and disability, but it — and the federal Civil Rights Act of 1964 — doesn't mention sexual orientation or gender identity.

"LGBT citizens can be thrown out of their home for being LGBT. They can lose their job because they're LGBT," Mayor Lioneld Jordan said Tuesday.

A section of state law dealing with bullying in public elementary and secondary schools does prohibit discrimination based on gender identity and sexual orientation.

Williams and Little Rock City Attorney Tom Carpenter have cited the anti-bullying statute, saying that, since it protects gays, lesbians and transgender students, ordinances like Fayetteville's are also valid.

"I would be prepared to defend the legality of that," Williams told aldermen Tuesday.

John La Tour, who, with Martin Schoppmeyer, was one of two City Council members to oppose the Uniform Civil Rights Protection ordinance, said Arkansas Attorney General Leslie Rutledge has already been asked to issue an opinion on whether Fayetteville's proposal — and other laws like it in Little Rock, Eureka Springs, Marvell and Hot Springs — conflict with Act 137.

La Tour agreed with Williams that litigation is imminent, and, he said, it will likely cost the city a great deal more than the $37,000 the Sept. 8 election is expected to cost.

"That's just the beginning," he said. "We'll spend hundreds of thousands of dollars in legal fees defending against this."

Williams disputed the claim.

"Obviously I've defended the city many times when we've been challenged," he said. "I don't charge anything extra, unfortunately."

Others who opposed the Fayetteville ordinance during nearly four hours of debate Tuesday objected to the proposal on moral grounds.

Peter Tonnessen said religious exemptions do not go far enough. Private residents, such as bakers and florists, could still be compelled against their will to provide services for a gay couple, Tonnessen said.

Duncan Campbell, who led the charge to overturn Fayetteville's previous Civil Rights Administration ordinance, criticized the City Council for moving through three readings of the latest proposal all in one night.

"It's another example of an out-of-touch, out-of-control City Council," Campbell said following Tuesday's meeting.

His concerns were overridden, however, by the majority of Fayetteville's eight aldermen.

"What we have before us tonight is the opportunity to take this directly to the people," Mark Kinion said.

If the council were to hold additional meetings to discuss the ordinance, "experience shows us that we're going to hear the same people with the same arguments again," he added. "Everyone has a valid argument and a point of view. It's based on their beliefs. It's based on their attitudes. And it's based on how they feel on this specific issue."

Kinion and four other council members opposed an amendment to refer the Civil Rights Administration ordinance to a public vote last year but voted for a special election this time around.

"If I had my druthers, we wouldn't send it to a special election," Alderman Matthew Petty said. "Civil rights shouldn't be voted on."

But, he noted, residents collected well more than the 4,095 signatures needed last year to refer the Civil Rights Administration ordinance to a public vote.

"They'll be able to again, so we might as well have (a special election)," Petty said.

Alderwoman Sarah Marsh added that, by scheduling an election, rather than waiting for the ordinance to be challenged via a petition drive, City Council members will be able to set ballot language themselves.

Alderman Justin Tennant was the only City Council member to oppose the Civil Rights Administration ordinance last year and support the latest anti-discrimination law Tuesday.

While Tennant said he would have preferred to avoid the expense of a special election, he added, "Most of my objections have been removed from when I voted against this the first time."

Tennant joined La Tour and Schoppmeyer in voting to hold the ordinance on its second reading Tuesday. As chairman of the City Council's Ordinance Review Committee, he said he would have been happy to schedule a meeting to further discuss the proposal.

Aldermen Kinion, Marsh, Petty, Adella Gray and Alan Long voted to suspend the rules and move to a third and final reading.

Mayor Jordan cast the sixth and deciding vote needed to put the issue up for a final approval Tuesday.

Jordan said he was fully aware of the potential consequences of his support for the contentious ordinance.

"I know I live in a political world," he said. "It may cost you the next election, but I'm willing to pay that price, because I'm going to fight for equality."

Laura Phillips, one of several residents who was heavily involved in last year's campaign against repeal of the Civil Rights Administration ordinance, said following Tuesday's meeting advocates of the latest proposal will be out in full force in the weeks leading up to the Sept. 8 election.

"We're going to raise money; we're going to campaign; we're going to get the vote out; we're going to do this with compassion; and we're going to win this," Phillips said.

Of the 14,580 residents who cast ballots in the Dec. 9 referendum on the Civil Rights Administration ordinance, 7,527, or roughly 52 percent, voted for the ordinance's repeal and 7,047, or 48 percent, voted against its repeal.

Joel Walsh can be reached by email at jwalsh@nwadg.com or on Twitter @NWAJoel.

NW News on 06/17/2015