Fayetteville gets more time to defend civil rights ordinance | Arkansas Blog

Friday, May 12, 2017

Fayetteville gets more time to defend civil rights ordinance

Posted By on Fri, May 12, 2017 at 7:54 AM

click to enlarge BART HESTER: Fayetteville may depose him in civil rights case. - BRIAN CHILSON
  • Brian Chilson
  • BART HESTER: Fayetteville may depose him in civil rights case.
Circuit Judge Doug Martin of Fayetteville has given the city of Fayetteville more time to prepare to fight the state's effort to dismiss its argument that a state law unconstitutionally overrode the city ordinance attempting to protect rights of gay people.

City Attorney Kit Williams had asked for more time because the state had argued the city had provided only "meager" evidence of state animus toward LGBT people in passing a state law prohibiting local ordinances extending civil rights protection to classes of people not already protected in law. The Arkansas Supreme Court has held the Fayetteville ordinance ran afoul of that law, but did not rule on the issue of whether the state law amounted to unconstitutional discrimination against gay people.

The state law doesn't specifically say that it is intended to prevent passage of protections for LGBT people, but it was widely understood that this was the point. Fayetteville has already pointed to public and social media comments by Sen. Bart Hester and Rep. Bob Ballinger, two leading opponents of LGBT protections, in support of its argument.

The issue is critical, Williams notes in a memo to city officials. Cases elsewhere have held that efforts to legalize discrimination against LGBT people are an unconstitutional erosion of equal protection rights under the 14th Amendment.

Given the state's argument that the evidence presented so far was insufficient to make this claim, Williams said he needed more time to prepare, including possible depositions from Hester and Ballinger.  Their statements would "cure" some of the state objections, he said, and also "give these legislators an opportunity to clarify and expand their statements."

Martin gave the city 120 days from May 9 to prepare, putting the deadline in September.


Hester and others made clear this was about LGBT people, with a specious argument that providing equal treatment for them under the law somehow discriminated against HIM. From a Buzzfeed article at the time:

Hester acknowledged LGBT people can be targeted for discrimination, but contended that “we are all singled out for discrimination.”

“I am singled out as a politician. I am singled out because I am married to one woman,” Hester said. “I want everyone in the LGBT community to have the same rights I do. I do not want them to have special rights that I do not have.”
But his law prevents Fayetteville from giving LGBT people the same protection in employment, housing and public accommodations. It was passed so that people with Hester's belief may discriminate against gay people on the basis of their sexual orientation.

The state is arguing that the law is constitutional because it doesn't single out LGBT people. The city responds:

Act 137 of 2015's concealed, but apparent, purpose is a status based enactment to prevent gays, lesbians and transgender persons from receiving any local law protection from discrimination and any affirmation of their legal equality from local governments in Arkansas.
As a matter of fact, this is simply true. As a matter of law, this case won't end in circuit court. Other jurisdictions in Arkansas, including Little Rock and Eureka Springs, have passed measures aimed at varying degrees of support for equal rights for LGBT people.


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