Judge Upholds Fayetteville Ordinance Despite State Law to the Contrary

Yesterday Circuit Judge Doug Martin in Washington County issued a summary judgment upholding Fayetteville’s so-called “nondiscrimination” ordinance despite a new state law, Act 137 of 2015, prohibiting counties and cities from creating protected classes on any basis not contained in state law.

The City of Fayetteville recently enacted an ordinance granting special protections based on sexual orientation and gender identity; the ordinance carries significant, unintended consequences we have written about in the past. Attorneys from Northwest Arkansas as well as the Attorney General’s Office brought a lawsuit against the city, alleging the city’s ordinance violated Act 137, because it created new, protected classes of citizens not found in state law. Judge Martin, however, ruled in favor of the city ordinance.

In a nutshell, Judge Martin’s ruling plays loose with facts and with the language of Arkansas state law. The ruling hinges on Arkansas’ anti-bullying law intended to help prevent bullying in public schools; the anti-bullying law addresses bullying that is based on, among many other things, sexual orientation or gender identity. Judge Martin essentially claims this anti-bullying law gives the City of Fayetteville a basis in state law upon which to enact its ordinance.

The problem is Arkansas’ anti-bullying statute does not create any protected classes. It is designed to protect students enrolled in a public school from physical harm and harassment. Judge Martin’s ruling implies that because state law says a public school student should not be bullied due to their sexual orientation, sexual orientation amounts to a protected class under state law.

The same anti-bullying law says a public school student cannot be bullied because of his or her “academic status.” By Judge Martin’s logic, Arkansas’ anti-bullying law arguably makes education level some sort of protected class, meaning a person might enjoy more or less protection depending on their intelligence or education.

The fact of the matter is Arkansas’ anti-bullying law is irrelevant to this conversation. Arkansas’ Civil Rights Act addresses protected classes of citizens. The state Civil Rights Act provides protections based on immutable characteristics like race and national origin. Sexual orientation and gender identity are never mentioned. Judge Martin’s ruling drastically misconstrues state law in order to create new, protected classes. It’s unthinkable.

Judge Martin’s ruling likely will be appealed to the Arkansas Supreme Court. Depending on how the Arkansas Supreme Court rules, there is a slim possibility the issue could be appealed further in federal court. In the meantime, the Arkansas Legislature could opt to amend Act 137 to clarify cities and counties cannot create protected classes on a basis not found in the Arkansas Civil Rights Act.

One thing is for sure: This debate is far from over.

Photo Credit: “Old Main from the northwest, University of Arkansas, Fayetteville, Arkansas (autumn)” by Brandonrush – Own work. Licensed under Creative Commons Attribution-Share Alike 3.0 Unported.

Houston Rejects “Equal Rights” Ordinance

Voters in Houston rejected a so-called “equal rights” ordinance by a vote of roughly 61% to 39%.

This represents a major victory for religious liberty in Houston. As you may recall, Houston’s mayor tried to subpoena pastors’ sermons and church documents last year during the debate over the ordinance.

In 2014 the Houston City Council passed the controversial “Houston Equal Rights Ordinance” which gives special protections to citizens based on sexual-orientation and gender-identity.

The proposal threatened the liberty of religious people and institutions who object to homosexual behavior, and it arguably would have allowed a biological male to enter women’s restrooms, showers, locker rooms, and similar facilities in Houston.

Houston residents petitioned to bring the ordinance up for a popular vote. This week, voters made their position overwhelmingly clear.

A.G.: Local “Nondiscrimination” Ordinances Unenforceable

Earlier this year the Arkansas Legislature passed Act 137 preventing city or county governments in Arkansas from creating protected classes of citizens not found in state law.

Despite Act 137, four cities along with Pulaski County have passed ordinances extending special protections on the basis of, among other things, sexual-orientation and gender-identity.

Today Attorney General Leslie Rutledge issued an opinion on the five local ordinances, saying,

“Act 137 renders unenforceable any ordinance that prohibits discrimination on a basis not already contained in state law. Because current state law does not prohibit discrimination on the basis of sexual orientation or gender identity, it is my opinion that Act 137 renders the five ordinances unenforceable in this respect. . . .

“This language indicates that the General Assembly intended Act 137 to ‘hold the field’ with respect to antidiscrimination law. The Act expressly prohibits localities from regulating in that field. More specifically, the Act effectively prohibits cities and counties from prohibiting discrimination in a way that varies from state law. . . . By removing the cities’ and counties’ ability to enact antidiscrimination laws at variance with state laws, Act 137 clearly holds the field and leaves no room for political subdivisions to act.”

With seventy-five counties and hundreds of cities and towns across the state, it makes sense that policies concerning civil rights and discrimination would be addressed at the state level rather than left up to each individual city council or quorum court.

The opinion comes as early voting begins in Fayetteville, where voters have been asked to weigh in on a so-called “nondiscrimination” ordinance. Even if passed, according to this opinion from the Attorney General, the ordinance would be unenforceable as it is currently written.

We have discussed before how these local ordinances carry a number of unintended consequences. Among other things, they threaten to infringe religious liberty, and some of them even inadvertently allow men to use women’s restrooms, locker rooms, showers, and similar facilities–and vice versa.

You can read the full A.G.’s opinion here.