Circuit Judge Doug Martin of Fayetteville ruled today that Arkansas cities are not prevented from passing local nondiscrimination ordinances protecting LGBT people, despite a state law passed last year that intended to do just that.
That means Fayetteville’s Ordinance 5781, which voters ratified in a popular vote last fall, still stands. It’s a setback for the plaintiffs, Protect Arkansas, a conservative group formed to oppose the civil rights measure, as well as the state Attorney General’s office, which intervened in the case on behalf of the plaintiffs.
Act 137 of 2015 (called Senate Bill 202 before it became law) says cities and counties can’t create local laws or rules that “create protected classification or prohibits discrimination on a basis not contained in state law.” The Arkansas Civil Rights Act forbids discrimination on the basis of race, religion and other classifications — but not sexual orientation or gender identity. Act 137 ostensibly prevent local governments from expanding the list of “protected classes.” Although LGBT people aren’t mentioned in the law directly, that’s clearly whom its authors had in mind when the statute was crafted.
In his order today, Judge Martin agreed with the argument made by Fayetteville city attorney Kit Williams: State laws actually do include protections for those classes in statutes dealing with domestic violence and anti-bullying. Act 137 doesn’t say anything about classes covered by the Arkansas Civil Rights Act in particular; it only says “contained in state law.” Thus, cities can enact local civil rights laws protecting LGBT people.
Martin did not rule on the question of whether Act 137 itself is unconstitutional. Instead, he granted summary judgment to the defendants — the city of Fayetteville and its mayor and aldermen — on the question of whether Act 137 applies to this particular civil rights ordinance. The order states:
The language of this first prong of Act 137 is plain and unambiguous and the court must construe it just as it reads, giving the language used its plain meaning. Act 137 does not state that Arkansas’s municipalities are prohibited from creating a protected classification on a basis on contained in the ACRA. Rather, Act 137 states that Arkansas prohibits its municipalities from creating a protected classification “on a basis not contained in state law.” Ark Code Ann. 14-1-403(a). Clearly, the classifications of gender identity and sexual orientation were classifications of persons protected on bases contained in state law prior to the enactment of Ordinance 5781. As such, Ordinance 5781 does not create a protected classification on a basis not contained in state law and, therefore, the ordinance does not violate the plain meaning of the language used in the first prong of Act 137.
The judge’s order also denies the motions of the plaintiffs and the state for summary judgement on a variety of other counts alleging that the passage of Ordinance 5781 violated due process, that the special election on the issue constituted an illegal exaction, and more.
The Arkansas ACLU filed an amicus brief in the case on behalf of the defendants, and ACLU attorney Holly Dickson said an appeal of Martin’s decision is all but certain.
“We can count the days until the state and the plaintiffs file a notice of appeal and seek review, likely from the Arkansas Supreme Court,” Dickson said.
“We think the decision of the trial court is correct. It’s certainly consistent with the opinions we’ve seen form most if not all of the city attorneys in the state that have evaluated this question.”
Little Rock city attorney Tom Carpenter authored a legal opinion last year that made the same case the Fayetteville defendants successfully argued. The Little Rock city board passed its own nondiscrimination ordinance last year, although it’s narrower than Fayetteville’s.
In a memo to Fayetteville Mayor Lionald Jordan and the city council after the judge delivered his order, Kit Williams said he was “gratified that we were able to cross this first legal hurdle” but acknowledged that an appeal to the Supreme Court is “very likely.”
“I will continue to strive to do my bset to support our Fayetteville citizens’ enactment of the Uniform Civil Rights Protection ordinance against all challenges,” Williams wrote.