Arkansas justices rule city can’t apply law on gender bias

Measure violates state statute

Northwest Arkansas Democrat-Gazette File Photo
Citizens gather Friday, Feb. 24. 2017 at Dickson Street and College Avenue in Fayetteville in response to the recent decision by the Arkansas Supreme Court to overturn a city ordinance that offers recourse for LGBT people who have been discriminated through housing and employment.
Northwest Arkansas Democrat-Gazette File Photo Citizens gather Friday, Feb. 24. 2017 at Dickson Street and College Avenue in Fayetteville in response to the recent decision by the Arkansas Supreme Court to overturn a city ordinance that offers recourse for LGBT people who have been discriminated through housing and employment.

FAYETTEVILLE — The Arkansas Supreme Court ruled the city can’t enforce an ordinance banning discrimination based on sexual orientation or gender identity, saying it’s already ruled the measure violates a state law.

The court reversed and dismissed a Washington County judge’s decision to allow Fayetteville to continue enforcing its anti-discrimination ordinance while the city challenged the constitutionality of a 2015 law preventing cities and counties from enacting protections not covered by state law.

Arkansas’ civil-rights law prohibits discrimination on the basis of race, religion, gender, national origin and disability, but not sexual orientation or gender identity.

Travis Story, attorney for the anti-ordinance group Protect Fayetteville, said the ruling should be the end of the issue.

“From our perspective, this is kind of the final resolution of the ordinance issue,” Story said. “They ruled that it was void and that Act 137 basically pre-empts it. So, from our point of view this is really it. I think we always knew this is the right result, it just took a very long time and a lot of patience to get here.”

Kit Williams, city attorney, said he’ll ask the Supreme Court to re-hear the case to clear up any confusion. Williams said no decision has been made on whether the city will continue trying to enforce the ordinance.

The state Supreme Court in 2017 ruled the ordinance violates a state law involving intrastate commerce. The law seeks to ensure businesses are subject to the same nondiscrimination rules across the state, regardless of the municipality. Citing that decision, justices on Thursday reversed a ruling by Washington County Circuit Judge Doug Martin and dismissed the case.

The high court did not rule whether the state law is constitutional, which Williams said came as a surprise. Williams said both sides argued that point before the Supreme Court.

“We have a right to be heard on our Constitutional argument. I’ve argued that from day one,” Williams said. “We’ve always tried to defend on two grounds. One is that we complied with the statute — that ground’s gone, we don’t argue that anymore. But, the other was that the statute that would bar the ordinance would be unconstitutional.”

Story said he does not expect the city to be successful in getting a re-hearing.

“If they want to ask for a re-hearing, that would be their right to do. But, for all intents and purposes, it seems like this is what the court is going to do,” Story said. “I guess I feel pretty confident in the ruling. I’m not saying they can’t change their mind, it would just be odd.”

The court also ruled, in a separate decision, that lawmakers have legislative privilege, meaning they can’t be forced to explain why they made certain decisions about proposed legislation before them and can’t be forced to testify about the reasons for their decisions. The justices refused to further set parameters for legislative privilege, saying those will be fleshed out in future cases based on specific sets of facts before the court.

The court also affirmed that executive privilege exists in Arkansas, reversing the lower court ruling.

Justice Robin F. Wynne, in a concurring opinion, agreed with the majority that the case should be reversed and dismissed, based on the justices’ earlier ruling. But, Wynne was critical of the court for failing to provide direction about how legislative and executive privilege should be applied. Wynne said he would have simply dismissed the appeal as moot.

After deeming the city’s ordinance violated state law, justices remanded the case in 2017 to Judge Martin, who denied a motion by Arkansas Attorney General Leslie Rutledge to halt the ordinance.

Martin’s decision to allow the continued enforcement of the nondiscrimination ordinance was the reason the case wound up on appeal back before the Supreme Court.

Other cities, such as Eureka Springs and Little Rock, that had already enacted ordinances protecting LGBT residents said they would continue to enforce their ordinances because other state laws, including an anti-bullying statute, mention gender identity and sexual orientation.

Fayetteville voters approved the Uniform Civil Rights Protection Ordinance in September 2015.

On remand, proponents of the Fayetteville ordinance argued that Act 137 itself is unconstitutional. They sought to subpoena the sponsors of the law, Sens. Bob Ballinger, R-Hindsville, and Bart Hester, R-Cave Springs, and requested discovery for documents related to the legislation.

The legislative privilege issue popped up in several unrelated cases recently but was not addressed by judges hearing those cases.

Fayetteville’s ordinance lets lesbian, gay, bisexual and transgender residents appeal to the city if they are fired from a job or evicted because of possibly discriminatory reasons. A commission was set up to take up such cases but no complaints were ever filed.

Williams said the election had the desired effect.

“I think the shop owners, the landlords, the employers all realized that the people of Fayetteville do not want discrimination against gay, lesbian and transgender people here in Fayetteville and so it stopped,” Williams said. “The election worked, democracy worked and I think it will maintain but we certainly want to continue to try to defend this ordinance and we’re going to do what we can to keep the battle going because we feel like, in the end, we have to support equality.”

Story said the issue should have been taken before the state legislature from the beginning.

“This is the wrong place to bring this kind of legislation. If somebody wants to bring it, they need to bring it to the General Assembly. The whole time this was pretty much about the process,’ Story said. “We always felt that Fayetteville went about this wrong and that’s what this was about. Because of that, we’ve had to spend years fighting this but in the end, we really did show, and I think we got the ruling, that said the process was done incorrectly. There is a process for this in Arkansas, it just wasn’t going through the city council.”

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