Thursday, February 23, 2017

Arkansas Supreme Court reverses decision on Fayetteville non-discrimination ordinance

Posted By on Thu, Feb 23, 2017 at 9:12 AM

click to enlarge COURTS.ARKANSAS.GOV

The Arkansas Supreme Court has reversed the circuit court decision upholding the Fayetteville civil rights ordinance, which was aimed at extending protection to LGBT people, along with other protected classes.

Attorney General Leslie Rutledge challenged the ordinance on the ground that it ran afoul of a state law aimed at preventing local civil rights ordinances to protect gay people. An anti-gay group, Protect Fayetteville, also challenged the ordinance. The ACLU and a group of major businesses filed arguments in support of the ordinance's legality.

The decision, written by Justice Jo Hart, had no dissents.

Here's a link to the ruling, but it's working slowly, perhaps because of interest.

The state law said cities could not enact ordinances to protect classes not protected in state law. The state civil rights law doesn't include LGBT protection. But anti-bullying law does include protection based on gender identity and sexual orientation. Sexual preference is also noted in the domestic abuse statute and sex change is covered in the vital statistics law. Since those are "contained in state law," the lower court ruled, the Fayetteville ordinance didn't run afoul of state law.

The Supreme Court disagreed and accepted the attorney general's argument that the state was attempting to ensure uniform law across the state. (Take notice: That's not true as a matter of legislative intent. They wanted, no more or less, to preserve the ability to discriminate against LGBT people.)

Said the court:

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 identify. 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.

...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.

Moreover, the statutes cited by the circuit court, the antibullying statute, the Arkansas Domestic Peace Act, and the Vital Statistics Act, are unrelated to nondiscrimination laws and obligations and do not create protected classifications or prohibit discrimination on some basis. Rather, in their respective contexts, these statutes (1) provide a nonexclusive list of attributes on which a public school student or public school employee may not be bullied at school; (2) ask domestic-abuse shelters to develop their own nondiscrimination policies; (3) and permit the amendment of birth certificates. Accordingly, we hold that the circuit court erred in ruling chat Ordinance 5781 did not violate Act 137.
It's a sweeping and unanimous decision that likely upends similar efforts adopted around the state, including in Little Rock where the city board has approved an ordinance not to do business with those who discriminate.

If there's any consolation, one potential issue is preserved.  Judge Doug Martin didn't rule in circuit court on the question of the constitutionality of the state statute, in that it was intended to preserve discrimination against gay people. Attorneys have argued this is an equal protection violation. The state asked the Supreme Court to rule on that, too, in hopes of getting anti-gay precedent written into the body of law. The court declined to rule on that issue because it was not a part of Judge Martin's ruling. That leaves the door open to challenges of state law on that ground, though the anti-gay bias demonstrated in past comments and decisions by members of this Supreme Court paint a pessimistic outlook.

The case is remanded to the lower court for orders consistent with the ruling.

Holly Dickson, a lawyer for ACLU Arkansas, commented:

Though we had hoped for certainty and a final outcome today, the decision is not surprising. We expect to see issues of constitutionality of the state law addressed on remand to the trial court. We’ve long expressed concerns about the constitutionality of this law and we will continue to support the City of Fayetteville and other cities who are providing these important protections.
This statement on behalf of Attorney General Leslie Rutledge, whose office prevailed in the case:

“Attorney General Rutledge is grateful that the Arkansas Supreme Court unanimously agreed with the State’s interpretation of Act 137 and reversed the lower court's decision. Act 137 requires that discrimination protection be addressed at the state level and be uniform throughout the state.” 
I asked if the attorney general would support state legislation that included LGBT protection. Her spokesman, Judd Deere, responded:

The Attorney General does not believe that anybody, including LGBT people, should be discriminated against, but that is a question for the General Assembly. As you know, the Attorney General cannot sponsor bills. She is committed to working with all members of the General Assembly on proposed legislation to ensure that bills and amendments filed are clear and effectively
state the legislative intent.
From Tippi McCullough, leader of the Stonewall Democratic Caucus:

The Stonewall Democratic Caucus of Arkansas is extremely disappointed in the Arkansas Supreme Court ruling written by Justice Jo Hart that the Fayetteville non-discrimination ordinance violated Act 137. Instead of choosing the path of equality and justice for all, the AR Supreme Court has bought into the false narrative that the purpose and intent of Act 137 is to require uniformity of non-discrimination laws across our State. The purpose and intent of Act 137 is clearly to discriminate against the LGBT community by not allowing cities to pass nondiscrimination ordinances that would extend vital protections for LGBT people in employment, housing, medical care, and commerce. Justice Hart was correct in one aspect in her ruling and that is that her ruling ensures the intent of uniformity. Unfortunately, that uniformity is the uniformity to ensure discrimination of LGBT to continue in Arkansas
Little Rock Mayor Mark Stodola said the decision was disappointing. But he said: "We believe our ordinance falls in the framework of the statute. We think it is valid and we are going to enforce it."

He notes that Little Rock's ordinance refers to gender identity and gender is a protected class in the state civil rights law. He also noted that the question of constitutionality of the state statute aimed at discrimination remains to be litigated.

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