The Arkansas Supreme Court heard oral arguments yesterday about whether municipal civil rights ordinances which ban discrimination based on sexual orientation and gender identity violate Arkansas law.
The case traces back to 2015 when Fayetteville and the gay-friendly Ozarks town of Eureka Springs passed civil rights ordinances banning discrimination based on gender identity and sexual orientation. In response, the Arkansas Legislature passing Act 137, "The Intrastate Commerce Improvement Act."
Sponsored by state Sen. Bart Hester (R-Cave Springs), Act 137 prohibits cities and counties from passing civil rights ordinances that create a protected classification or prohibits discrimination on a basis not contained in state law. The Arkansas Supreme Court is now decided whether to uphold that law.
Arkansas's public school student and employee anti-bullying code recognizes sexual orientation and gender identity. But Arkansas’s Civil Rights Act, which lists race, color, national origin, religion, sex, disability and genetic information, does not. That has led local Arkansas cities and towns to pass municipal civil rights ordinances to protect local citizens, and the state legislature to block them, under Act 137.
In early 2016, Washington County Circuit Court Judge Doug Martin ruled Fayetteville's ordinance does not violate Act 137. That triggered Arkansas Attorney General Leslie Rutledge to file an appeal to the Arkansas Supreme Court last year. Yesterday's Supreme Court oral arguments in support of Act 137 were led by Arkansas Solicitor General Lee Rudofsky, speaking for “Protect Fayetteville," a conservative organization which attempted but failed to block passage of Fayetteville's civil rights ordinance.
“The act was intended to insure statewide uniformity of discrimination law," Rodofsky said, "and prevent a patchwork of varying discrimination laws in the 500-plus localities in AR.”
Rodofsky is referring to more than 500 cities and towns across the state. But Fayetteville City Attorney Kit Williams arguing in defense of municipally enacted civil rights measures said Fayetteville’s non-discrimination ordinance is moderate and compliments state law.
“Our particular ordinance passed by the citizens of Fayetteville incorporated every definition from the Arkansas civil rights statute to the Arkansas Fair Housing statute," Williams said, "every exemption, and privilege and exclusion that was in the Arkansas Civil Rights Act. We did not attempt to give gay, lesbian, or transgender people any more rights than the state of Arkansas.”
Danielle Weatherby is associate professor of law at the University of Arkansas. She helped draft Fayetteville's civil rights ordinance. She says the heart of the Arkansas Supreme Court's case on municipal civil rights conveyance is statutory interpretation.
“The city of Fayetteville’s interpretation of existing law that because certain state laws already protect for example students in schools from bullying based on their sexual orientation and gender identity," she says, "the Fayetteville non-discrimination ordinance simply extends those protections to other areas such as housing, employment and places of public accommodatation.”
Weatherby says this case is of national importance because other states are passing and considering measures similar to Act 137.
“The crux of this lawsuit is the constitutionality of that very act," she says. "So other states will be looking at what Arkansas does as a guidepost at what will happen in their own states.”
If the Arkansas Supreme Court upholds Act 137, she expects defendants will appeal the decision to the U.S. Supreme Court, she says.
“If the U.S. Supreme Court were to accept review," she says, "then its decision on the constitutionality of laws like Act 137 would become nationwide law.”
An amicus brief filed in support of case defendants cites that the United States Supreme Court has repeatedly made clear that laws enacted in order to disadvantage a particular group are unconstitutional. A decision from the state supreme court is expected in the coming weeks.
NOTE: This story is part of a package of coverage of the Supreme Court's hearing yesterday. See Sarah Whites-Koditschek's report here.