By Arthur S. Leonard
Last year Arkansas legislators were determined to prevent local governments from passing laws banning discrimination against LGBT people, so they passed Act 137, which says that counties, municipalities and other “political subdivisions” of the State of Arkansas “shall not adopt or enforce an ordinance that creates a protected classification or prohibits discrimination on a basis not contained in state law.” They obviously thought that they had erected a firewall against any local laws banning discrimination because of sexual orientation or gender identity, but on March 1 Washington County Circuit Judge Doug Martin gave them a rude shock, ruling that Act 137 did not prevent the city of Fayetteville from passing such an ordinance.
The case is Protect Fayetteville & State of Arkansas v. City of Fayetteville, No. CV 2015-1510-1.
The Fayetteville City Council passed such an ordinance twice. The first time a group of disgruntled citizens succeeded in getting it repealed by initiative. But the City Council went back and passed a new ordinance, which survived a second referendum challenge.
This time, however, armed with Act 137, a group calling itself “Protect Fayetteville” filed a lawsuit arguing that the new measure, Ordinance 5781, was “unlawful” because of Act 137. The state intervened in their lawsuit as a co-plaintiff. Lawyers for the city countered that their ordinance does not violate Act 137 and that if it does, then Act 137 is unconstitutional because the legislature intended to discriminate against LGBT people in violation of the Equal Protection Clause by prohibiting local governments from outlawing such discrimination.
Judge Martin found that he was bound to interpret Act 137 strictly, according to the plain meaning of the text. So he asked whether “sexual orientation” or “gender identity” could be called “a basis not contained in state law”?
To the apparent surprise of those attacking the Fayetteville ordinance, it appears that Arkansas has passed laws that treat sexual orientation and gender identity as “protected classifications.” One such is a statute entitled “Antibullying policies” which, wrote Martin, “ensures that students and public school employees are reasonably free from substantial intimidation, harassment, or harm of threat by students.”Among the “protected classifications” in this statute are “sexual orientation” and “gender identity.”
Another example is a statute called the Arkansas Domestic Peace Act, which requires domestic violence shelters to develop and implement a written nondiscrimination policy to provide services without regard to “sexual preference.” The wording isn’t exactly the same, but Judge Martin was willing to see this as an instance of state law recognizing sexual orientation as a protected classification.
Furthermore, the lawyers for the city pointed out, Arkansas law provides that birth certificates can be amended for transgender people to show their sex that accords with their gender identity. Arguably this could be recognition of gender identity as a protected classification.
The challengers cried foul, insisting that what the state legislature mean to do by passing Act 137 was to ensure that local laws could not outlaw discrimination in employment, housing or public accommodations on any ground that was not covered by the state’s anti-discrimination law. But Judge Martin found that the relevant language in Act 137 “is plain and unambiguous and the court must construe it just as it reads, giving the language used its plain meaning. Act 137 does not state that Arkansas’s municipalities are prohibited from creating a protected classification on a basis not contained in the Arkansas Civil Rights Act. Rather, Act 137 states that Arkansas prohibits its municipalities from creating a protected classification ‘on a basis not contained in state law.’”Since “sexual orientation” and “gender identity” were “classifications of persons protected on a basis contained in state law” before Act 137 was passed, the Fayetteville ordinance clearly does not violate that state law.
Judge Martin also rejected a nit-picking argument by the plaintiffs that when Act 137 used the word “basis” it was referring to “the area of law in which a prohibition of discrimination is contained.” Thus, they argued, because the state does not prohibit employment discrimination because of sexual orientation, neither can a locality. Martin found that the word “basis” as used in the statute referred to “the reason why a person is discrimination against,” not the subject matter of the discrimination.
As to the challengers’ argument that Martin must interpret Act 137 to achieve what the legislature intended, he responded that “our supreme court has instructed that courts should perform an examination of the whole act and reconcile provisions of the whole act to make them consistent, harmonious, and sensible in an effort to give effect to every part.” Martin insisted that he “must still consider the ordinary and usual meaning of the language, and to insert the language requested by the State into the statute where the plain language reads otherwise is beyond the scope of this court’s authority.”
While acknowledging that the interpretation urged by the state “is not entirely unreasonable,” nonetheless Martin say that he would “not go so far as to insert language into a statute in place of other existing language.”
Since he found that the Fayetteville ordinance did not violate Act 137, wrote Martin, there was no need for him to rule on the constitutional question posed by the defendants. He also rejected an argument by the challengers that the local ordinance violated the constitutional rights of religious freedom of local citizens and businesses who might be forced to take actions contrary to their religious beliefs in order to comply with it. He rejected this claim without explanation, merely referring to “the reasons argued by the defendants.”
When the Little Rock City Council was debating a similar proposed ordinance last year, their city attorney, Tom Carpenter, wrote a legal opinion that made the same arguments that the defendants successfully used in the Fayetteville case, reported the Arkansas Times on March 2. Local officials acknowledged that the challengers and the state would appeal, and that this case might be headed to the Arkansas Supreme Court.