Little Rock City Attorney Tom Carpenter
completed a legal opinion Sunday evening that says a proposed Little Rock civil rights ordinance,
intended to list some specific new protections in law for LGBT people, does not conflict with a new state law.
That new law says civil rights protections may not be expanded beyond anything "already protected by state law."
The key portion of the opinion rests on something that will come as a surprise to many, if not all who supported the bill to prevent cities and counties from extending civil rights protection to gay people.
Here's why: State law already DOES PROVIDE protection for sexual orientation and gender identity, if not in the main state civil rights law. Thus, a city ordinance specifically providing such protection doesn't provide something not already found in state law. The Arkansas Constitution
also speaks decisively on non-discrimination, Carpenter wrote, which might also be a commentary on what should happen if someone tries to invalidate the Little Rock ordinance citing the 2015 law.
The new law, authored by Sen. Bart Hester
as a reaction to Fayetteville's voter-repealed effort to broaden local civil rights protection based on sexual orientation and gender identity, doesn't take effect until July. In the meanwhile, there's no doubt cities and counties may pass whatever civil rights protections they choose.
Last week, City Director Kathy Webb
introduced an ordinance to place in the city code an existing city policy that says the city won't discriminate in employment on account of sexual orientation and gender identity. The state law doesn't attempt to prohibit cities from doing this.
But the ordinance also requires people who wish to do business with the city to abide by non-discrimination policies that include — in addition to such traditional categories as race, gender and religion — sexual orientation and gender identity.
City Director Joan Adcock
asked Carpenter for a formal opinion on whether this would run afoul of the new state law, which specifies that it will invalidate any local ordinance that extends protections not granted in state law. She was joined in sharp questioning on this point by two other directors, B.J. Wyrick
and Erma Hendrix.
Opponents of legal protection for gay people — such as Jerry Cox
, leader of the Family Council,
identified as a hate group by the Southern Poverty Law Center on account of its anti-gay activities, and Rep. Bob Ballinger,
another legislative leader of anti-gay legislation — have been critical of the city ordinance. They said it was either unnecessary or they suspected an effort to create a ground for a constitutional challenge of the new state law.
Wrote Carpenter (with my emphasis supplied):
The proposed ordinance does not violate Arkansas law, specifically Act 137 of 2015, because every prohibition against discrimination named is already named somewhere in state law. Further, the proposed ordinance is consistent with interpretation by the Arkansas Supreme Court of the Equal Protection Clause of the Arkansas Constitution. Finally, the proposed ordinance is in conformity with federal law and regulations that bar discrimination.
Simple right? I can hear the howling from the anti-gay preachers and lawyers already. Here's why they'll howl. This little trick — "somewhere in state law" — has been lying in wait for months. It was in open sight on the statute books, if not to all the anti-gay legislators.
Carpenter's opinion lets out of the bag information those seeking equal rights have kept quiet through the legislative debates. Where the new statute prohibits extending protection for attributes not already protected in law, they looked only to the state civil rights statute, which indeed has no provision for sexual orientation or gender identity. But, there are at least two state laws that specifically extend protection based on sexual orientation or gender identity — 1) an anti-bullying statute championed by Webb in her days as a legislator; and 2) a law providing emergency shelters and other services for domestic abuse victims. The opinion notes, too, that federal law has expanded coverage for transgender people — the flashpoint issue for most of the anti-gay crowd because of the irrational fear of "men" in women's restrooms — under terms of gender protection. CORRECTION: I wrote incorrectly previously that a law protecting privacy of genetic information, also part of the city ordinance, also specifically mentions sexual orientation. It does not.
Carpenter's opinion goes point by point through protected classes in state and federal law — by statute, EEOC opinion and federal executive action. He notes that state law allows people to change the gender originally listed on a birth certificate, thus giving official state sanction to transgender people and, by extension, allowing them to be protected from discrimination.
But most powerful is the Arkansas Constitution's
own equal protection clause, the basis for the Arkansas Supreme Court decision that struck down the law making homosexual sodomy a crime. The equality of all persons before the law "shall ever remain inviolate," the Arkansas Constitution says. Carpenter wrote:
The key to the equal protection argument is that the Court's statement effectively provides there is no governmental interest in using taxpayer revenues to fund entities or person which wish to deny equal protection to some group. The desire to assure that the City revenues do not directly or indirectly support the denial of constitutional rights to the listed groups is there thrust of the proposed ordinance. A legislative body "cannot act, under the cloak of police power or public morality arbitrarily to invade personal liberties of the individual citizen." Since a government cannot act in such a manner, the fact that the proposed ordinance merely states that the City will not act in such a manner, directly or indirectly, is certainly consistent with the Arkansas Constitution, i.e., state law.
From that Supreme Court opinion:
As for the argument by Adcock and others that the ordinance somehow compels behavior by private businesses, Carpenter wrote it "does not require action by any business in Arkansas."
There is no requirement that any business within the City adopt any personnel policy because of this ordinance. Instead, the ordinance states that discrimination for certain reasons is not allowed and that if a company wishes to vie for a contact with the City, it must follow the very policies the City follows. In short, the proposed ordinance would define an aspect of a "responsive" bidder in a price bid, and a "qualified" bidder in a services bid, as one that adhered to the City's requirements against discrimination and were willing to execute a document to that effect.
Here's the full opinion, with some corrected typos.
The bigots in the legislature got snookered, looks like. I doubt Hester, Ballinger and the rest of those hoping to preserve legal discrimination against gay people will accept this opinion. But here's the beauty of it, it seems to me: If they try to say the laws where sexual orientation or identity exist don't count in their new law, they are making as definitive statement as you can imagine of the obvious — their law was ALWAYS about discriminating against gay people in employment, housing and public accommodation. And the Arkansas Supreme Court, in Jegley v. Picado, said eloquently about that:
If the Constitution and Carpenter's opinion hold, Hester's Big Gay Discrimination Law will be rendered meaningless.
Let the lawsuits begin. Here's a chance for Gov. Asa Hutchinson
to weigh in. Does he support legal discrimination against gay people or does he not? Those tech companies eyeballing Little Rock might be interested in his opinion, not to mention Tuesday night's vote of the City Board on Webb's ordinance.