Arkansas Supreme Court Issues Good Ruling on Fayetteville Ordinance

FOR IMMEDIATE RELEASE
Thursday, February 23, 2017

On Thursday the Arkansas Supreme Court issued a ruling effectively striking a Fayetteville ordinance granting special protections to people based on sexual orientation and gender identity.

Family Council President Jerry Cox released a statement, saying, “This is a good ruling. Laws about discrimination are best left to the state and federal governments. The City of Fayetteville overstepped when it passed this ordinance. I’m glad the Arkansas Supreme Court understood that and struck the ordinance down.”

Cox criticized the Fayetteville ordinance, saying, “The ordinance granted special protections for people based on sexual orientation and gender identity, but it failed to protect religious Arkansans. Under this ordinance, a minister could have been penalized for declining to solemnize a same-sex marriage, and people of faith who own catering services, florist shops, wedding venues, and so on could have been penalized for declining to participate in or cater to same-sex ceremonies. One of the founding principles of our nation is the free exercise of religion. Fayetteville’s ordinance penalized people for living and operating according to their faith. The Arkansas Supreme Court did the right thing in striking this ordinance.”

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Understanding North Carolina’s “Bathroom Bill”

North_Carolina_Locator_Map_with_USOver the past several weeks we have seen a lot of questions–and misinformation–about North Carolina’s so-called “bathroom bill”. What is this bill, and does Arkansas need one like it?

In a nutshell, North Carolina’s proposed H.B. 2 primarily does five things:

  1. It requires restrooms, locker rooms, showers, changing rooms, and similar facilities at public schools to be sex-specific, and requires each person to use the facility that corresponds to his or her biological sex.
  2. It requires restrooms, locker rooms, showers, changing rooms, and similar facilities at government buildings–like those at highway rest stops, public colleges, and so on–to be sex-specific, and requires each person to use the facility that corresponds to his or her biological sex.
  3. It allows these institutions to designate single-occupancy restrooms as available to any person, regardless of sex. That means a restroom with only one stall in it, for example, could be used by anyone regardless of his or her sex or gender-identity.
  4. It prevents cities and counties from enacting ordinances creating additional, protected classes–much like Arkansas’ Intrastate Commerce law passed in 2015 does.
  5. It allows businesses and other organizations to designate their restrooms as they see fit. That means if Target wants to let biological males use the women’s restrooms, Target may do so; if Walmart, for instance, wants to make sure a man or woman uses the restroom that corresponds to his or her biological sex, Walmart may do so.

It is entirely reasonable for the State of North Carolina to pass a law governing how government-owned and operated restrooms and similar facilities are utilized.

It is entirely reasonable for the North Carolina Legislature to reserve the power to recognize protected classes of citizens.

And it is entirely reasonable for businesses to decide biological males must use the men’s room and biological females must use the women’s room.

As to whether or not Arkansas needs a law like North Carolina’s, Arkansas passed a law in 2015 that prevents local governments from creating or recognizing any protected classes not found in state law; this should effectively prevent cities and counties from giving special rights or protections to people based on sexual orientation or gender identity–just as North Carolina’s bill does.

As far as the “bathroom” aspect of North Carolina’s bill is concerned, Arkansas’ lawmakers may want to look into legislation that would prevent some of the madness we have seen in states whose legislatures have not addressed public restrooms.

For example, last February a Seattle man entered the women’s locker at a pool twice–once while a girls’ swim team was present. When confronted, he told staff, “the law has changed, and I have a right to be here.” The police were not called, and no one was arrested. Our friends at the Family Policy Institute of Washington also recently wrote about a convicted sex offender trying to gain access to women’s restrooms and locker rooms.

Given the situations other communities are facing, it’s easy to understand why a state legislature would want to clarify the laws surrounding sex-specific facilities.

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.