Attorney general believes local civil rights laws contrary to state law | Arkansas Blog

Tuesday, September 1, 2015

Attorney general believes local civil rights laws contrary to state law

Posted By on Tue, Sep 1, 2015 at 3:04 PM

  • Thomson Reuters
  • UNIMPRESSED: LR City Attorney Tom Carpenter
Attorney General Leslie Rutledge today issued an opinion — requested by anti-gay Rep. Bob Ballinger — that local civil rights ordinances are unenforceable because of Act 137 of 2015, which aimed to make such local ordinances illegal.

Rutledge's opinion is only advisory. It is contrary to that issued by a number of city and county attorneys in the passage of civil rights ordinances in, among others, Little Rock, Fayetteville, Hot Spring, Eureka Springs, and Pulaski County.

Said Rutledge, in summary:

Act 137 renders unenforceable any ordinance that prohibits discrimination on a basis not already contained in state law. Because current state law does not prohibit discrimination on the basis of sexual orientation or gender identity, it is my opinion that Act 137 renders the five ordinances unenforceable in this respect. 

Several attorneys, led by Little Rock City Attorney Tom Carpenter, have said current state law DOES prohibit discrimination on the basis of sexual orientation or gender identity in several contexts, including the anti-bullying statute. Opponents of the anti-home-rule law sponsored by Ballinger, Sen. Bart Hester and others knew this as the bill was being debated and sprung it in support of local ordinances after passage of the state law but before it took effect.

The timing of Rutledge's opinion will be welcomed by supporters of legal discrimination against gay people. Such an ordinance has been referred to voters in Fayetteville next Tuesday and a lawsuit filed by opponents of the argument this week seeking to stop the action raises the argument that the ordinance isn't permissible under state law. Rutledge's opinion will give them a talking point.

Ultimately, only a court can finally decide the issue. In the mix will be the U.S. Supreme Court ruling that gave equal rights and due process protection to same-sex marriage. Inevitably, those issues will be developed more fully in employment, housing and other contests of state law.

Rutledge argues, primarily, against using the anti-bullying law as proof that non-discrimination provisions already exist in state law and thus the local ordinances don't provide something not already in existence. 

The statue prohibits bullying based on an "attribute," defined as "actual or perceived personal characteristic including without limitation race, color, religion, ancestry, national origin, socioeconomic status, academic status, disability, gender, gender identity, physical appearance, health cond ition, or sexual orientation."

But Rutledge argues this is not aimed at discrimination.

The statute says that the bullying "may address" one of the listed attributes. Under the statute, one can bully another entirely without reference to the person's attributes. In contrast, the only way for a person to violate one of the [local] nondiscrimination statutes noted above is for the person to discriminate on one of the listed bases.

She then turns to dictionary definitions to argue that" bullying is not a subset of discrimination andthat  discrimination is not a subset of bullying."

She concludes: "Therefore, because no state law currently prohibits discrimination based upon someone's sexual orientation or gender identity, I can say that Act 137 renders the local ordinances you ask about unenforceable in this respect."

This is another Rutledge opinion — like the one protecting employment records of a Republican appointee, Boyce Hamlet, the ABC enforcement division chief — that doesn't credit another staff member with preparation. Presumably the rest would have been too ashamed to sign this.

By way of comparison, here's Tom Carpenter' analysis. Significantly missing from Rutledge's opinion is any attempt to address his  argument that Arkansas Supreme Court rulings — in overturning the sodomy statute and a ban on gay adoptions, for example — have upheld a broad interpretation of the state Constitution's equal right section in favor of sexual minorities. Thus, an effort to abridge rights of a sexual minority — which the state law s meant to do — would fall to the Constitution, without need for any statutory hair-splitting.

Here's the part Rutledge either didn't see or chose to ignore in Carpenter's opinion:

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 the 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 [city civil rights] 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.

I talked to Carpenter later. "This is the attorney general who was willing to uphold discrimination against people getting married even when the Supreme Court said she can't. I'm not real impressed." Rutledge fought against affirmation of a federal court ruling against the state's marriage ban even after the U.S. Supreme Court ruling invalidating such bans.

Carpenter added: "I don't care who we elect or what party they're a member of. But we need to elect somebody who has integrity and doesn't just bow with the popular winds of the moment."

UPDATE: For Fayetteville, the group working for equality in that city, shares my suspicion about the timing of Rutledge's opinion.

“We believe ordinance 5781 is compatible with Act 137 and therefore constitutional,” Danielle Weatherby, For Fayetteville executive committee member and assistant professor of law said. “We encourage the citizens of Fayetteville to exercise their constitutional right to vote during early voting at the courthouse from 8 AM to 4:30 PM this week, and on Election Day, Sept. 8, from 7:30 AM to 7:30 PM at any polling location.”

“Attorney General Rutledge’s opinion bears no weight as a legal precedence. It is still up to a judge to decide this issue. Her opinion is just that – an opinion of one lawyer,” Weatherby said. “Many attorneys in Arkansas have reached a different opinion on Act 137.”

“The timing of this opinion on the first day of early voting is suspicious and possibly politically motivated,” Weatherby said. “It may be yet another maneuver to mislead voters and influence the outcome of the Sept. 8 election.

The haters at the Family Council are naturally thrilled with Rutledge, as they should be for catering to those who believe in discrimination against gay people. The Family Council remember, went ballistic, when a gay man was appointed to the state Board of Education. He wasn't qualified, despite being a distinguished college professor. But when Asa appointed a Family Council office assistant with a church college degree in Bible, that was a sterling appointment.

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