Wednesday, July 1, 2015

Attorney General Rutledge dodges key points on civil rights ordinances

Posted By on Wed, Jul 1, 2015 at 6:13 PM

Interesting. An attorney general's official opinion, generally a long and learned recitation, today is a short, succinct "no" to the question of whether local ordinances can supersede the gay-discrimination act passed by the legislature to prohibit local governments from passing their own civil rights ordinances. Of course not, but …..

The opinion is glaringly — and admittedly — deficient in discussing many pertinent points. One: The state pro-discrimination law prevents adoption of ordinances that add protections not extended in state law. As City Attorney Tom Carpenter of Little Rock has noted, several elements of state law extend protections on the basis of sexual orientation or gender identity. Thus, new ordinances that do this are legal. There is also the huge question of the Arkansas Constitution's declaration of rights section that prohibits discrimination in the most sweeping language. And yes, there's a new U.S. Supreme Court ruling on marriage that suggests legalization of discrimination against gay people has, for at least the third time, been viewed unfavorably by the U.S. Supreme Court.

Anyway: here's the opinion. It's meaningless. It has no force of law. Local ordinances in Eureka Springs, Little Rock and Garland County, among others, provide grounds for deciding the question of whether discrimination is legal or not in Arkansas. It asks only a timing question, not the real question. Some court will decide, not anti-gay Attorney General Leslie Rutledge.

Opinion No. 2015-054

July 1, 2015

The Honorable Mickey Gates
State Representative
377 North Highway 7
Hot Springs, Arkansas 71901

Dear Representative Gates,

You have asked for my opinion on the following question:

If a county, municipality, or other political subdivision of the state—prior to Act 137 of 2015 going into effect—adopts an ordinance, resolution, rule or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law, does Act 137 prohibit the county, municipality, or other political subdivision from enforcing it?

RESPONSE

For the sake of clarity, I want to highlight the question I have been asked to address here. The question is not about what is meant by the phrases “protected classification” or “on a basis not contained in state law.” Nor is the question about whether any particular rule or ordinance of a political subdivision conflicts with Act 137 of 2015. Rather, the question is whether a local ordinance or rule can be enforced when (1) it was enacted before Act 137 and (2) it conflicts with Act 137.

The answer to this question is “no.”

Section 1 of Act 137 prohibits the enforcement of a conflicting local rule or law: “A county, municipality, or other political subdivision of the state shall not…enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.” (Emphasis added.) When a state and a local law conflict, the latter yields.[1] Therefore, if a political subdivision enacted an ordinance, rule, or resolution that conflicted with Act 137, then the local law could not be enforced.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve. Sincerely, Leslie Rutledge
Attorney General
LR/RO:cyh

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