Fight over Fayetteville's anti-bias law not over, Republicans say

FAYETTEVILLE -- A Washington County circuit judge's ruling this week will not be the end of the fight over what kinds of non-discrimination laws cities can enact, two state legislators said Wednesday.

Judge Doug Martin ruled Tuesday that Fayetteville's voter-approved ordinance protecting gay, bisexual and transgender people from some kinds of discrimination is valid and enforceable under Act 137, which says local governments can't bar discrimination "on a basis not contained in state law." The state's civil rights law doesn't cover sexual orientation or gender identity, but other statutes do.

Web Watch

To see Judge Doug Martin’s ruling, go to nwadg.com/documents.

State Sen. Bart Hester, R-Cave Springs, and state Rep. Bob Ballinger, R-Hindsville, sponsored Act 137 last year and said they would likely try to amend the act during the 2017 regular General Assembly session to undeniably ban ordinances such as Fayetteville's. Ballinger, who's also part of the lawsuit against the city that led to Martin's ruling, said in the meantime the ruling certainly would be appealed to a higher court.

"I feel like the judge really took a stretched reading of the law and the interpretation in order to come to the conclusion he wanted to come to," Ballinger said. "It's real clear what the law was designed to do."

Fayetteville City Attorney Kit Williams previously called Martin's ruling "well-reasoned" and said he was prepared for the legal dispute to continue.

"I will continue to strive to do my best to support our Fayetteville citizens' enactment of the Uniform Civil Rights Protection ordinance against all challenges," Williams said in a statement after the decision.

The lawsuit's plaintiffs have 30 days to decide whether to appeal, said Judd Deere, spokesman for Attorney General Leslie Rutledge. Rutledge became a party in the case because of the dispute over a state law.

Ballinger expected an appeal straight to the Arkansas Supreme Court, but an appeal could go to either that court or the Arkansas Court of Appeals depending on what approach the plaintiffs take, Deere said.

"I don't know what the plan is -- they're still reviewing the ruling," he said of the attorney general's office. Protect Fayetteville President Duncan Campbell said in a message Wednesday evening the group was "reviewing all of our legal options, including appeal."

Fayetteville's ordinance protects people from being evicted, fired, turned away or otherwise discriminated against because of their sexual or gender identity, with an exemption for religious organizations. Voters approved it last fall.

The ballot group Protect Fayetteville and other ordinance opponents sued, claiming in part it violated Act 137. Attorney General Leslie Rutledge later said the act made Fayetteville's ordinance unenforceable, along with similar laws in Eureka Springs and elsewhere.

In his ruling, Martin agreed with Williams' reasoning that state laws against bullying and affecting domestic violence shelters provide the "basis" needed to clear Act 137's test by saying people with different sexual orientations or gender identities should be treated the same.

Williams also argued if Act 137 doesn't allow the city's ordinance, the act should be found unconstitutional. The U.S. Supreme Court's 1996 Romer v. Evans decision declared laws banning local protections for gay and transgender people were unconstitutional. That ruling would apply to Arkansas, Williams said. The attorney general disputed this, saying the act had a constitutional purpose to keep local laws fair and consistent.

Martin declined to rule on the question.

Williams said Wednesday he would make the same argument to a higher court if an appeal is made.

"They might not want to go down that road," Williams said of a Supreme Court hearing. If Act 137 is changed, "My opinion to the City Council would be that act doesn't control (us) because it's unconstitutional."

Of the two options -- appeal or amend -- Ballinger said he'd rather take the court route.

"I'd prefer for the courts to just interpret the law the way it's meant to be interpreted," he said.

Hester said the ruling came from an "activist judge," and he welcomed the chance to prove it in a higher court.

"The law we wrote is very, very clear," he said. "If not, we'll correct the law in '17 when we go back down there."

NW News on 03/03/2016

Upcoming Events