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Arkansas Supreme Court Rules Fayetteville Anti-Discrimination Measure Violates State Law

Posted on: February 23rd, 2017 by Art Leonard No Comments

Fayetteville has been a hotbed of LGBT rights advocacy, but on February 23 the Arkansas Supreme Court, reversing a ruling by Washington County Circuit Court Judge Doug Martin, found that the city and its voters had violated state law by adding “sexual orientation” and “gender identity” to their antidiscrimination ordinance. Protect Fayetteville & State of Arkansas v. City of Fayetteville, 2017 Ark. 49.  Justice Josephine Linker Hart wrote the opinion for the unanimous court.

Responding to earlier attempts to enact LGBT rights protections in Fayetteville, the Arkansas legislature passed Act 137 in 2015. Titled the Intrastate Commerce Improvement Act, Ark. Code Ann. Sec. 14-1-401 to 403, the measure was intended, according to its purpose section, “to improve intrastate commerce by ensuring that businesses, organizations, and employers doing business in the state are subject to uniform nondiscrimination laws and obligations, regardless of the counties, municipalities, or other political subdivisions in which the businesses, organizations, and employers are located or engage in business or commercial activities.”  To that end, the measure bars local governments from adopting or enforcing “an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.”  The Act recognizes one exception: local governments are left free to legislate on their own employment policies.  Thus, a city can adopt an ordinance banning discrimination in its own workforce on grounds “not contained in state law.”

Arkansas, in common with the entire southeastern United States, does not forbid sexual orientation or gender identity discrimination in its state antidiscrimination statute. The clear intent of the legislators was to preempt local governments from adding those two characteristics to their local antidiscrimination ordinances. Or at least that’s what the court held in this decision.

Local LGBT rights advocates and city officials took a different view, however, seizing upon the literal meaning of “not contained in state law” and finding that Arkansas laws existed mentioning sexual orientation or gender identity. For example, an anti-bullying law protects public school students and employees from bullying because of gender identity or sexual orientation, among a list of 13 characteristics.  There is also a provision in the state’s domestic violence law requiring domestic violence shelters to adopt nondiscrimination policies that include “sexual preference.”  And the state’s vital statistics act provides a mechanism for an individual to get a new birth certificate after sex reassignment surgery.  Taken together, the advocates argued that “sexual orientation” and “gender identity” are classifications that exist in Arkansas law, their inclusion in the city’s anti-discrimination ordinance would not be prohibited by Act 137.

The city council approved a new ordinance, Ordinance 5781, to add those categories to the local law, subject to an affirmative referendum vote. Opponents of the measure (plaintiffs in this case) tried to get the local court to stall the referendum while they contested the legality of the proposed ordinance, but the local court refused and the public voted to approve the measure.  Ultimately, Judge Martin agreed with the argument that “sexual orientation” and “gender identity” could be added to the local ordinance, as they were categories that were mentioned in state law.

The Supreme Court’s reversal was premised on legislative intent. “In this case,” wrote Justice Hart, “the General Assembly expressly stated the intent.”  The operative language could not be construed in isolation from the prefatory provision explaining why the legislature had adopted Act 137.  They wanted nondiscrimination laws to be uniform through the state, and did not want localities to outlaw discrimination based on classifications that were not included in the state’s own antidiscrimination law.  “The express purpose of Act 137 is to subject entities to ‘uniform nondiscrimination laws and obligations,’” wrote Justice Hart.  She also noted that the Fayetteville ordinance, in a provision explaining the city council’s purpose, stated that “its purpose is to ‘extend’ discrimination to include ‘sexual orientation and gender identity.”  Explained Justice Hart, “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 identity.”  She’s incorrect, of course, as to this statement, since by its plain meaning the ordinance would protect anybody from discrimination because of their sexual orientation or gender identity, including “straight” and “cisgender” people.

“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,” wrote Hart. “This necessarily creates a nonuniform nondiscrimination law and obligation in the City of Fayetteville that does not exist under state law. 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.”  She noted that the statutes relied upon by the city and Judge Martin to argue that these categories were covered in state law were not antidiscrimination statutes, and thus could not be relied upon as a basis for adding them to the local antidiscrimination ordinance.

As a co-plaintiff in the case the State had intervened to protect the constitutionality of Act 137, which had been questioned by the city, but that issue had not been addressed by the circuit court, and the Supreme Court held it thus had not been preserved for appeal. The case was reversed and remanded.  On remand, the city could pursue the question of the constitutionality of Act 137.  It is strikingly similar, despite its euphemistic wording, to Colorado Amendment 2, which was declared unconstitutional under the 14th Amendment by the Supreme Court in Romer v. Evans (1996).  Amendment 2 prohibited the state or any political subdivision from prohibiting discrimination because of sexual orientation.  The Supreme Court, focusing on the legislative history of the measure, condemned it as intended to make gay people unequal to everybody else in the state out of moral disapproval.  The state had advanced a desire for uniformity of state laws as one of many justifications for Amendment 2, but Justice Anthony Kennedy, writing for the Court, did not specifically reject any of the state’s justifications, merely stating that none of them were sufficient to justify the law, which did not even clear rational basis scrutiny.

Sloppy Arkansas Legislation Leaves LGBT Rights Law Intact

Posted on: March 3rd, 2016 by Art Leonard No Comments

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.