FAYETTEVILLE — The city’s protections for lesbian, gay, bisexual and transgender residents will carry on despite the Arkansas Supreme Court ruling Thursday the Civil Rights Ordinance violates a state law.
City Attorney Kit Williams said he accepted the Supreme Court’s ruling the ordinance violates the Instrastate Commerce Improvement Act, or Act 137 of 2015. However, the Supreme Court sent the question of whether that state law is constitutional back to Washington County Circuit Court.
Until Circuit Court Judge Doug Martin makes a ruling, or issues a stay, the ordinance will remain enforceable, Williams said.
“The fat lady hasn’t sung yet,” he said.
Fayetteville voters passed Ordinance 5781 with a 53 percent majority in September 2015. The ordinance makes it so business owners and landlords can’t fire or evict someone based on sexual orientation or gender identity. Religious institutions and day cares are exempt from the ordinance.
Act 137, sponsored by state Sen. Bart Hester, R-Cave Springs and state Rep. Bob Ballinger, R-Berryville, was approved in February 2015 without Gov. Asa Hutchinson’s signature. The stated purpose of the act is to improve intrastate commerce “by ensuring that businesses, organizations and employers doing business in the state are subject to uniform nondiscrimination laws and obligations” regardless of municipalities’ ordinances.
Danielle Weatherby, a University of Arkansas law professor who helped draft Fayetteville’s ordinance, said she viewed Act 137 as “unquestionably unconstitutional.” She cited the landmark U.S. Supreme Court case Romer v. Evans as precedent. The 1996 decision established a Colorado state constitutional amendment to prevent protections based on sexual orientation failed rational basis review.
Rational basis review states a law must pertain to a legitimate government interest. Travis Story, attorney for Protect Fayetteville, the group fighting against Fayetteville’s ordinance, said the Romer decision doesn’t relate to the constitutionality of Act 137. The law meets rational basis review because it prevents a patchwork of laws confusing business owners, he said.
“We want the city to have to follow the law. That’s what this is about,” Story said. “Act 137 says the state is the proper jurisdiction to do anything, to take any action, regarding discrimination laws.”
Williams said the stated intent of the law isn’t unconstitutional. However, he said it was obvious the law was a reaction to Fayetteville’s effort to protect the rights of gay, lesbian, bisexual and transgender people.
“We still have a valid challenge to the constitutionality of Act 137,” Williams said. “Until that is decided, I don’t see any reason why our city ordinance would not be able to keep going.”
Martin sided with the city in a March decision, ruling the ordinance didn’t violate Act 137 because it protected people already protected under state law. Other state provisions, such as laws on bullying, domestic violence and birth certificates, cover discrimination based on sexual orientation and gender identity, the city argued.
The ordinance created a Civil Rights Commission to hear discrimination complaints submitted to the City Attorney’s Office. The commission had its first and only meeting in November 2015 and has yet to field a complaint. Williams said his office has only received two complaints; one was outside the city’s jurisdiction and the other never made it to the commission.
The fight over the ordinance began long before special election. The City Council in August 2014 approved an anti-discrimination ordinance voters repealed later that year. The council went through several rounds of discussions before drafting a narrower version voters eventually approved. During the course, Protect Fayetteville sued, the state intervened and Act 137 became law.
In a unanimous opinion written by Associate Justice Josephine Linker Hart, the Supreme Court noted the ordinance specifically states its purpose is to extend discrimination to include sexual orientation and gender identity. The court ruled the ordinance equates to a municipal decision to expand the provisions of the Arkansas Civil Rights Act of 1993, which prevents discrimination on the basis of race, religion, national origin, gender and disability.
“It is clear from the statutory language and the Ordinance’s language that there is a direct inconsistency between state and municipal law and that the Ordinance is an obstacle to the objectives and purposes set forth in the General Assembly’s Act and therefore it cannot stand,” the opinion reads.
Arkansas Attorney General Leslie Rutledge in a statement praised the court’s ruling and reiterated Act 137 required discrimination protection be addressed at the state level and uniform.
Paul Phaneuf, a past City Council candidate and appellant in the case with Protect Fayetteville, said he was grateful for the Supreme Court’s ruling but saw the victory as incomplete. Phaneuf said he believed the City Council infringed the section on religious liberty outlined in the state constitution saying no human authority can, in any case or manner whatsoever, control or interfere with the right of conscience.
“For me, that has always been at the heart of the issue; and it is what motivated me to enter the race for alderman in 2014 and 2016,” he said.
Mayor Lioneld Jordan expressed disappointment but said the fight would go on.
“I’ve spent my life fighting for equality, diversity and inclusion. You’ve heard me say that before and you’ll hear me say that again,” said. “I think every class of people should be treated equally in this city, in this state, in this nation and in this world.”
What: Rally for Fayetteville Civil Rights
When: 5 p.m. today Where: Corner of Dickson Street and College Avenue
Stacy Ryburn can be reached by sryburn@nwadg.com or on Twitter@stacyryburn.