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 proposal Tuesday, setting up a Sept. 8 special election.
Uniform Civil Rights Protection ordinance
If approved in a Sept. 8 referendum, Fayetteville’s Uniform Civil Rights Protection ordinance, like a Civil Rights Administration ordinance voters repealed Dec. 9, would prohibit employers, landlords and places of public accommodation from firing, refusing to hire, evicting, refusing to rent to or declining service to someone because of his sexual orientation or gender identity.
Churches and religious organizations of any kind are exempt from the ordinance.
Complaints of discrimination would be fielded by the city attorney’s office. The city would first attempt to resolve disputes through private mediation. If mediation failed, the complaint would be investigated by a seven-member Civil Rights Commission, comprising two representatives of the business community; two owners or managers of rental property; one representative with experience in human resources or employment law; and two citizens at large, at least one of whom identifies as gay, lesbian, bisexual or transgender. Commission members would be appointed by the City Council to three-year terms.
The commission would have the option of referring cases to the city prosecutor’s office. Violators would face fines of up to $100 for the first offense and fines of up to $500 for each subsequent offense.
Source: Staff report
How they voted
A measure referring Fayetteville’s Uniform Civil Rights Protection ordinance to a public vote in a Sept. 8 special election
For: Adella Gray, Mark Kinion, Alan Long, Sarah Marsh, Matthew Petty, Justin Tennant
Against: John La Tour, Martin Schoppmeyer
Source: Staff report
But uncertainties continue regarding whether the ordinance is allowed under a state law the Arkansas Legislature approved 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came as a direct result of another anti-discrimination law the Fayetteville City Council approved in August but voters repealed Dec. 9.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 bill became law without Gov. Asa Hutchinson's signature.
It's set to take effect July 22, 90 days after the close of this year's legislative session. The law 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 neither it nor the federal Civil Rights Act of 1964 mentions 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 someone's gender identity and sexual orientation.
Williams and Little Rock City Attorney Tom Carpenter have cited the anti-bullying statute, saying because it protects gays, lesbians and transgender students, ordinances like Fayetteville's are valid.
"I would be prepared to defend the legality of that," Williams told the City Council on Tuesday.
Alderman John La Tour, at one point in the meeting, suggested holding off on a special election until Arkansas Attorney General Leslie Rutledge has had an opportunity to weigh in on the issue.
"It'd be a waste of resources and a waste of time to move ahead with this before the attorney general has issued an opinion," La Tour said. "She is the highest law enforcement official in our state. I realize we may have differences of opinion here in this room, but we should give deference to our attorney general's opinion."
State Rep. Mickey Gates, R-Hot Springs, on May 7 asked Rutledge for an opinion on whether Act 137 conflicted with an anti-discrimination ordinance the Hot Springs Board of Directors approved May 5.
Rutledge had not issued an opinion as of Friday.
Other Arkansas cities, including Eureka Springs, Little Rock and Marvell, have also enacted anti-discrimination ordinances in recent months, although Eureka Springs' law is the only other one that would impact private businesses citywide. The Hot Springs, Little Rock and Marvell ordinances only apply to city employees or contractors doing business with the cities.
Fayetteville aldermen rejected La Tour's request to wait on an attorney general's opinion.
Alderman Alan Long said he had concerns about a Republican attorney general offering her opinion on a law proposed by a Republican legislator.
"I respect your idea here," Long told La Tour. "But I would have to say, the attorney general, as a partisan elected official, I don't think should have a role in deciding nonpartisan elected person's votes.
"We're supposed to be nonpartisan people representing our city, and I don't think we should bring partisan politics into that."
Williams, Fayetteville's city attorney, said attorney general's opinions aren't legally binding.
"This is something that really needs to be decided by the courts," he said. "This is just her opinion, as we have an opinion from the Little Rock city attorney. His opinion's not conclusive either. Neither is mine. That's what courts are for."
A group seeking to overturn Act 137 through a public referendum announced Friday it would stop collecting signatures.
"The prevailing legal opinion is that this law does not prohibit cities from enacting nondiscrimination ordinances," the group, Arkansans to Protect Local Rights, stated in a news release.
Rutledge certified the popular name and ballot title for the referendum April 23. The measure would have required about 51,000 signatures in 90 days to be put to a public vote in the November 2016 general election.
Others who opposed Fayetteville's Uniform Civil Rights Protection 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 be compelled against their will to provide services for a gay couple, Tonnessen said.
Duncan Campbell, who led the charge to overturn the city'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 after 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 Tuesday.
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."
Last year, Kinion and four other current council members opposed an amendment that would have referred the Civil Rights Administration ordinance to a public vote. All five aldermen voted for a special election this time around.
"If I had my druthers, we wouldn't send it to a special election," said Alderman Matthew Petty. "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.
More than 14,500 people cast ballots in the Dec. 9 special election. Fifty-two percent voted for repeal of the ordinance, and 48 percent voted against repeal.
Alderwoman Sarah Marsh added that, by scheduling the election themselves, City Council members will have greater control over ballot language than if the ordinance was challenged in a petition drive.
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.
While Tennant said Tuesday 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 Martin 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, Long and Adella Gray 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 after Tuesday's meeting that 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.
Joel Walsh can be reached by email at jwalsh@nwadg.com or on Twitter @NWAJoel.
NW News on 06/22/2015