FAYETTEVILLE -- Intervenors in the case against the city's civil rights ordinance want to ensure their fellow lesbian, gay, bisexual and transgender residents maintain protections from discrimination under the law.
Washington County Circuit Court Judge Doug Martin last month allowed the American Civil Liberties Union of Arkansas to join the case on behalf of the Northwest Arkansas chapter of Parents, Family and Friends of Lesbians and Gays and three Fayetteville residents, Anthony Clark, Noah Meeks and Liz Petray.
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To learn more about the ordinance, go to:
bit.ly/faynodiscriminate
The case’s history
The Fayetteville civil rights ordinance debate began in the months leading up to the passage of Ordinance 119 in August 2014. Voters repealed the ordinance in December of that year, then the City Council, after a marathon public input session, passed another ordinance in June 2015 that went to voters in September 2015. That referendum passed with a 53 percent majority and Protect Fayetteville sued.
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. The state’s civil rights act prevents discrimination on the basis of race, religion, national origin, gender and disability, but not sexual orientation or gender identity.
The Arkansas Supreme Court in February ruled the city’s civil rights ordinance violates Act 137, but justices did not address the validity of the act, leaving that question to the lower courts.
Source: Staff report
Opponent group Protect Fayetteville and the state have joined forces in suing the city over its nondiscrimination ordinance. Following an Arkansas Supreme Court decision, the focus has shifted to the constitutionality of a state law enacted seven months before voters approved the city's ordinance in 2015.
Last month, Martin gave the city until September to prepare its argument legislators showed hostility toward lesbian, gay, bisexual and transgender residents with the enactment of Act 137.
The fight over Fayetteville's nondiscrimination law has lasted more than three years, starting with an initial ordinance voters repealed. The City Council followed with another ordinance and a referendum soon followed. Once voters approved that ordinance, the litigation was set in motion.
Clark, Meeks and Petray at various points joined the campaigns in support of the ordinance.
The American Civil Liberties Union of Arkansas contends legislators intended to nullify local civil rights protections for lesbian, gay, bisexual and transgender residents with the passage of the law and that as intervenors, Clark, Meeks and Petray are directly protected by Fayetteville's ordinance. The intervenors seek a declaratory judgment Act 137 violates the constitution.
The intervenors
Petray, a 26-year-old transgender woman from Beebe, regarded allowing lesbian, gay, bisexual and transgender residents the same protections as anyone else as "pretty benign stuff."
Petray considers herself lucky. She hasn't been kicked out of an apartment or fired from a job just for being transgender, but the possibility is always something that stays in the back of her mind, she said.
"Growing up wasn't exactly great," Petray said. "I wasn't out or anything until after I graduated, but it's not like I went from just normal all-American boy to girl. I caught a lot of flack and honestly, a lot of times I didn't even know what for."
Meeks, 35, changed his name and gender identity while living in Ann Arbor, Mich., in 2007. A graduate of Fayetteville High School, Meeks moved back to town in 2013 and needed a job. Soon after, the ordinance debate began and Meeks became involved.
Meeks has known transgender people who have quit a job, transitioned, and then taken another job often at lower pay, he said. The fear of getting fired during the transitional period can weigh heavily on the minds of transgender residents and even with a new job they can face discrimination during the hiring process, Meeks said.
"Having that kind of protection on the books at least gives somebody something to hang onto if they're going to go to their bosses and say, 'I'm going to transition,'" he said. "That's a level of security."
It's likely the three intervenors will be called upon to testify to share about themselves, their advocacy and involvement with the ordinance, said Holly Dickson, legal director with the American Civil Liberties Union of Arkansas.
"It's not just lending their names," she said. "It's opening their lives in order to try to hold onto some protections here."
Visibility matters and part of the conversation involves showing lesbian, gay, bisexual and transgender residents are just like everyone else, said Clark, 38, who is gay and described himself as an avid traveler.
Petray dabbles in standup comedy. Meeks meticulously curates his music collection for fun. Clark, owner of Clark Partners Realty Group, has remained an open advocate for civil rights and posted a blog entry in favor of the ordinance on his company's website.
"It comes down to the very core of the suit itself. Some people don't have the ability to be public about it, so those of us who can, I feel, are obligated and have the responsibility to," Clark said. "Because I know how important this issue is, I'm willing to make whatever sacrifice I need in regard to being out there and open with my community."
The state
State Sen. Bart Hester, R-Cave Springs, said he is "ever confident" Act 137 will be determined constitutional.
"The fact the ACLU is now involved strengthens my resolve that Act 137 is the right policy for Arkansas," he said. "These are the same people that fight to protect child rapists."
The state intervened in the case against the city ordinance days after it took effect in 2015 and has objected to the American Civil Liberties Union of Arkansas' involvement. The ACLU's motion to intervene was untimely and the intervenors don't have a right to participate in the city's constitutional challenge, the state argued in a motion filed in May. The city adequately represents the intervenors' interests and the intervention would delay and increase the cost of the proceedings, according to the motion.
In February, the state Supreme Court ruled against the city, saying the ordinance states its purpose is to extend discrimination protection to include sexual orientation and gender identity. The court ruled the ordinance equates to a municipal decision to expand the provisions of the state civil rights act, which prohibits discrimination on the basis of race, religion, national origin, gender and disability, but not sexual orientation or gender identity.
State Rep. Greg Leding, D-Fayetteville, introduced a bill in the latest legislative session that would have added sexual orientation and gender identity to the state's civil rights act, effectively removing the need for cities to come up with ordinances of their own. Eureka Springs has such an ordinance and Little Rock, Hot Springs and Pulaski County passed limited ordinances protecting their own employees and contractor employees from discrimination based on sexual orientation and gender identity.
Leding introduced the amendment to the state's civil rights act in 2015 but shuttered the effort after opponents started targeting other legislation of his in retaliation, he said. Leding moved his bill this year to the Legislature's deferred list, where it remained for the rest of the session, in exchange for Rep. Bob Ballinger, R-Berryville, doing the same with his religious freedom bill.
"Knowing our bill stood no chance of clearing committee and that Ballinger's bill, though not universally supported by Republicans, likely would advance, I agreed," Leding said. "The chair moved the bills to the deferred list, and there they died."
Ballinger said he views the debate over Act 137 as a cut-and-dry legal matter that has needlessly dragged on.
"There's no question on what the intent was because we put it right into the legislation, right into the code," Ballinger said.
No matter the outcome on the Circuit Court level, the case will go to the higher court. Ballinger expressed eagerness to get there.
"Whatever Martin's going to rule, let him rule," he said. "Then give us the opportunity to get on to the Supreme Court where the real discussion is going to happen."
As for amending the state's civil rights act as Leding previously proposed, such legislation would create uniformity in the law but is "fraught with other perils," in Ballinger's eyes. He cited instances in other cities in which business or property owners faced litigation for choosing not to serve same-sex couples.
"If there's a huge market out there for wedding cakes for same-sex ceremonies, the market will fill that void," he said. "Until then, we should let people have the right to associate how they want to associate."
City's onus
The ordinance created a Civil Rights Commission that has yet to hear a complaint. The potential publicity of a hearing with the commission is meant to deter those who might otherwise discriminate, City Attorney Kit Williams has said. The maximum fine for violating the ordinance is $100.
The ordinance will remain in place until the constitutionality of Act 137 is determined, Williams said. Although the city is a defendant in the case, it will have the onus of proving the law's discriminatory intent. It's like if someone is convicted of a crime but challenges the constitutionality of the law he's convicted of breaking, Williams said.
"When I look at some of the factors and statements around the enactment of Act 137, it leaves me to believe that there is animus," he said. "It was done because we had in fact passed Fayetteville's civil rights ordinance and there was a tweet even from Sen. Hester."
Hester tweeted the night of the first ordinance's passage, Aug. 19, 2014, "Regardless of how Fayetteville City Council votes tonight AR legislature will pass law in Feb/March to nullify this type of ordinance," according to a filing from the city.
Hester also has said the city should reimburse taxpayers for defense of their "frivolous" claims.
"If the city of Fayetteville would like to continue to waste their taxpayer funds it is OK with me," he said. "They are rarely accused of being fiscally responsible."
Paul Becker, chief financial officer for the city, said Williams has defended the litigation as part of his duty as city attorney. No special counsel has been hired.
"I don't know exactly how the city could pay back taxpayers and why," Becker said. "The ordinance and defense of that ordinance is city business."
NW News on 06/05/2017