by Max Brantley
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 identify. 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.It's a sweeping and unanimous decision that likely upends similar efforts adopted around the state, including in Little Rock where the city board has approved an ordinance not to do business with those who discriminate.
...It is clear from the statutory language and the Ordinance's language that there is a direct inconsistency between state and municipal law and that the Ordinance is an obstacle to the objectives and purposes set forth in the General Assembly's Act and therefore it cannot stand.
Moreover, the statutes cited by the circuit court, the antibullying statute, the Arkansas Domestic Peace Act, and the Vital Statistics Act, are unrelated to nondiscrimination laws and obligations and do not create protected classifications or prohibit discrimination on some basis. Rather, in their respective contexts, these statutes (1) provide a nonexclusive list of attributes on which a public school student or public school employee may not be bullied at school; (2) ask domestic-abuse shelters to develop their own nondiscrimination policies; (3) and permit the amendment of birth certificates. Accordingly, we hold that the circuit court erred in ruling chat Ordinance 5781 did not violate Act 137.
Though we had hoped for certainty and a final outcome today, the decision is not surprising. We expect to see issues of constitutionality of the state law addressed on remand to the trial court. We’ve long expressed concerns about the constitutionality of this law and we will continue to support the City of Fayetteville and other cities who are providing these important protections.This statement on behalf of Attorney General Leslie Rutledge, whose office prevailed in the case:
“Attorney General Rutledge is grateful that the Arkansas Supreme Court unanimously agreed with the State’s interpretation of Act 137 and reversed the lower court's decision. Act 137 requires that discrimination protection be addressed at the state level and be uniform throughout the state.”I asked if the attorney general would support state legislation that included LGBT protection. Her spokesman, Judd Deere, responded:
The Attorney General does not believe that anybody, including LGBT people, should be discriminated against, but that is a question for the General Assembly. As you know, the Attorney General cannot sponsor bills. She is committed to working with all members of the General Assembly on proposed legislation to ensure that bills and amendments filed are clear and effectivelyFrom Tippi McCullough, leader of the Stonewall Democratic Caucus:
state the legislative intent.
The Stonewall Democratic Caucus of Arkansas is extremely disappointed in the Arkansas Supreme Court ruling written by Justice Jo Hart that the Fayetteville non-discrimination ordinance violated Act 137. Instead of choosing the path of equality and justice for all, the AR Supreme Court has bought into the false narrative that the purpose and intent of Act 137 is to require uniformity of non-discrimination laws across our State. The purpose and intent of Act 137 is clearly to discriminate against the LGBT community by not allowing cities to pass nondiscrimination ordinances that would extend vital protections for LGBT people in employment, housing, medical care, and commerce. Justice Hart was correct in one aspect in her ruling and that is that her ruling ensures the intent of uniformity. Unfortunately, that uniformity is the uniformity to ensure discrimination of LGBT to continue in ArkansasLittle Rock Mayor Mark Stodola said the decision was disappointing. But he said: "We believe our ordinance falls in the framework of the statute. We think it is valid and we are going to enforce it."