Columns » Max Brantley

Supremely disappointing

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The Arkansas Supreme Court last week delivered a blow to civil rights in Arkansas. It was another results-oriented decision that gives a clue to how far the justices likely will go to appease the legislature.

The issue was a Fayetteville ordinance that extended protection to gay people from discrimination in housing, employment and public accommodations.

The Supreme Court said Fayetteville (and, by implication, several other local governments) could not adopt such ordinances. They said a 2015 Arkansas law prohibited local ordinances that protected a "classification" on a basis "not contained in state law."

This required some dancing around the rule of Arkansas law that says you cannot read intent into state law. You must be bound by the plain language.

The legislature said the law was meant to prevent a patchwork of civil rights law and so that's what it meant, the Supreme Court said. Indeed. It also was meant to ensure that discrimination against gay people is legal at every level of Arkansas government. But the drafters screwed up. Opponents knew it at the time and they lay in wait to defeat the law by plain words of the statute.

There are multiple points in state law that contain protection based on sexual orientation or gender identity — specifically an anti-bullying law, a domestic violence law and the law relating to birth certificates. The Supreme Court swept that argument away, calling these laws "unrelated" to anti-discrimination. It was of no concern to the court that these laws were specifically written to ensure discrimination didn't affect application of each law to certain classifications of people, particularly gay children, same-sex couples and transgendered.

All is not yet lost. The case goes back to circuit court, which now will consider the larger question of the constitutionality of the state law. It is, after all, aimed at protecting discrimination against gay people. In some states, that's been deemed unconstitutional, including an important federal case from Colorado.

Will the Supreme Court again take the legislature at its word when the case comes back? Is a uniform law (legal discrimination against gay people) good for business, as the law asserts? Or will the court heed the powerful amicus briefs filed by the ACLU and 31 businesses, including CVS Health and Delta Airlines, that asserted that discrimination is unconstitutional and also very bad for business. North Carolina provides very specific evidence.

The unanimous decision in this case doesn't hold out much hope for the U.S. Constitution's guarantee of equal rights under the law because the legislature rejects that. Justice Jo Hart wrote the opinion, which endorsed the legal argument of her former clerk and judicial campaign supporter, Attorney General Leslie Rutledge. Hart, something of a crusader against gay rights, also wrote the recent opinion that denied a presumption of parenthood on a birth certificate to both partners in a same-sex marriage. She said it was a matter of biology. This conveniently overlooked the fact that the state assumes parenthood for heterosexual couples who benefit from egg and sperm donation, along with adoptive couples.

The legislative hypocrisy in the local ordinance legislation is worth a mention. The legislature, which wants local (meaning state) control on same-sex marriage, bathroom rights and such, doesn't really want REAL local control if locals disagree with the Republican majority. See guns on campus, too, along with discrimination against LGBT people.

It may be coincidental, but this case was decided while the legislature deliberates a constitutional amendment to put lawsuit-killing caps on damages in personal injury lawsuits as well as attorney fees. A part of that proposal is transfer of rulemaking power to the legislature from the Supreme Court. A court ruling against a legislative act would have further inflamed the legislature.

If the Supreme Court is to be a rubberstamp of the legislature on its worst acts and an enemy of equal rights, I'm not sure it really matters if it does lose rulemaking authority. Checks and balances already lay in ruins.

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