Arkansas Supreme Court Strikes City’s LGBT Protections

LITTLE ROCK (CN) — The Arkansas Supreme Court struck down Fayetteville’s voter-approved ordinance that prohibited discrimination against “lesbian, gay, bisexual, and transgender citizens and visitors.”
The state supreme court reversed and remanded Washington County Judge Doug Martin’s upholding of Fayetteville’s Ordinance 5781, which the City Council approved on June 16, 2015 and sent to voters in a special election on Sept. 8 that year.
The ordinance stated: “Fayetteville is a welcoming, fair and tolerant city which endeavors to ensure that all of its citizens and visitors will be free from unfair discrimination. Since federal and state law already protect citizens from most discrimination, the Uniform Civil Rights Protection Article shall extend existing protections to lesbian, gay, bisexual, and transgender citizens and visitors as recognized elsewhere in state law.”

Fayetteville, pop. 80,000, is the third-largest city in Arkansas, behind Little Rock and Fort Smith.

On appeal, the state supreme court addressed whether Ordinance 5781 violated Act 137 of 2015, Arkansas’ Intrastate Commerce Improvement Act, the purpose of which is to ensure that various state entities are subject to uniform nondiscrimination laws.
The appellants were Protect Fayetteville fka Repeal 119 and three men who filed suit on Aug. 31, 2015, seeking to stop the special election.
The Washington County Circuit Court denied their request for an emergency restraining order, and a majority of voters approved the ordinance in the special election. The circuit court then denied a motion to stay the ordinance from taking effect. The state then intervened on the side of the appellants.
After a hearing, the circuit court found that Ordinance 5781 did not violate Act 137. Judge Martin found that gender identity and sexual orientation are classifications of persons protected in state law. Thus Ordinance 5781 did not create a protected classification on a basis not contained in state law, and did not violate Act 137.
Protect Fayetteville and Arkansas appealed to the state supreme court, against appellees that included the City of Fayetteville, its mayor, City Council members and Washington County.
The state argued that to avoid a “patchwork of different local rules and standards … the General Assembly precluded municipalities from adopting or enforcing an ordinance that ‘creates a protected classification or prohibits discrimination on a basis not contained in state law,’” Associate Justice Josephine Linker Hart wrote for the supreme court in the Feb. 23 ruling.

The state also challenged Fayetteville’s reliance on the anti-bullying statute, the Arkansas Domestic Peace Act, and the Vital Statistics Act. The city cited Martin’s ruling that its ordinance did not create a protected classification, as the state already had done so.

However, Justice Linker Hart wrote: “The Ordinance specifically states that its purpose is to ‘extend’ discrimination to include ‘sexual orientation and gender identity.’ In essence, Ordinance 5781 is a municipal decision to expand the provisions of the Arkansas Civil Rights Act to include persons of a particular sexual orientation and gender identity. This violates the plain wording of Act 137 by extending discrimination laws in the City of Fayetteville to include two classifications not previously included under state law. This necessarily creates a nonuniform nondiscrimination law and obligation in the City of Fayetteville that does not exist under state law.”

In reversing, Linker Hart wrote, “the Ordinance is an obstacle to the objectives and purposes set forth in the General Assembly’s Act and therefore it cannot stand.”

But Linker Hart added that this ruling does not resolve the constitutionality of Act 137, which the circuit court did not address.
The citizens group For Fayetteville, which supports the ordinance, responded in a statement Thursday: “We wholeheartedly disagree with the Arkansas Supreme Court’s ruling today declaring Ordinance 5781 unenforceable. We maintain that the ordinance complies with Act 137 and should’ve been upheld. On remand, Circuit Court Judge Martin will consider the constitutionality of Act 137, an issue that the Arkansas Supreme Court did not resolve. We believe that after a full briefing on the issue Judge Martin will declare Act 137 unconstitutional and the issue of Ordinance 5781’s legality will become moot. Meanwhile, we are disappointed that the Arkansas Supreme Court’s order did not preserve the status quo by allowing Ordinance 5781 to stay in effect pending the resolution of the constitutional question.”

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