The Arkansas Supreme Court
today stopped, at least temporarily, efforts by lawyers to question Sen. Bart Hester
and Rep. Bob Ballinger
about their sponsorship of legislation intended to prevent Fayetteville and other cities from adopting civil rights ordinances that protect gay people.
According to the Associated Press, the court issued a one-page order that stopped depositions and document requests while it considers the state argument
that they can't be compelled to testify about their legislation or produce documents about it.
The city and intervenors are trying to defend the city ordinance. The state, through Attorney General Leslie Rutledge and the group attempting to enforce the state law, Protect Fayetteville
, contend the law sponsored by Hester and Ballinger stops local ordinances that broaden civil rights protection beyond aspects listed in the state civil rights law. The state does not protect people from discrimination in employment, housing or public services on account of sexual orientation or gender identity. Hester and Balligner
and other anti-gay legislators and members of Protect Fayetteville want to keep it that way.
The Supreme Court has already upheld the pre-emption law. But those attempting to defend the Fayetteville ordinance are now arguing that the state law is unconstitutional because it specifically targets a group for discrimination. Hester and Ballinger argue the issue is about the uniformity of law or, using an alternate state law, religious freedom. Everyone who followed the origin of the laws or the debate know that, to the contrary, it is specifically about preserving the ability to discriminate against LGBT people
For that reasons, Fayetteville and other defenders of the audience want to take sworn depositions and discover documents the legislators and other state officials generated. You can see why the legislators don't want to talk about their motives.
Circuit Judge Doug Martin ordered the legislators
to testify. He said it was essential to the case. The state contends the legislators are entitled to "privilege" against it, though there's no specific provision in the Constitution for that, except as to protect them from having to testify about things said on the floor of the legislature in debate
The Supreme Court order today protects the legislators from testimony until that issue is decided. Nonetheless, I don't like the sound of the temporary order, certainly not from a court that has demonstrated 1) unfriendliness to gay rights 2) deference to the legislature and 3) Republican leanings.
UPDATE: This order didn't appear on the Supreme Court's normal Thursday report of decisions. I got a copy of it after a request this morning. It's styled as a response to an "emergency" request for a stay of Judge Martin's orders. It was apparently issued without notice to all participants in the case. Justice Courtney Goodson would have denied the request.
UPDATE II: The city of Fayetteville argued, to no avail, that the stay means the Supreme Court will have no documents or questions to legislators (such as about statements they made on social media or in news interviews) to consider in deciding the question on appeal. It will have to rule on conjecture in applying limits on what may be discovered. This is why I'm pessimistic about the Supreme Court siding with equal protection against state legislative secrecy.