The state Supreme Court this morning heard oral arguments in the case challenging the legitimacy of Fayetteville’s civil rights ordinance providing LGBT people protection from discrimination.
Ordinance 5781 was ratified by Fayetteville voters in a Sept. 2015 popular vote, 53-47. At issue is whether it violates a state law created by the legislature that same year. The law is Act 137 of 2015 (called SB 202 before it was passed into law) and is widely understood to have been created by the General Assembly in response to an earlier attempt to create civil rights protections for LGBT people in Fayetteville. Act 137 forbids cities and counties from creating local laws or rules that “create protected classification or prohibits discrimination on a basis not contained in state law.” The statewide Arkansas Civil Rights Act does not list gay, lesbian, bisexual or transgender people as protected classes — which is why Fayetteville and a handful of other local governments in Arkansas have taken steps to include them in civil rights protections; many cities and counties around the nation, and some states, have done the same.
However, Circuit Judge Doug Martin ruled in March 2016 that Ordinance 5781 does not violate the Act 137. Martin agreed with Fayetteville City Attorney Kit Williams’ argument that state laws other than the Civil Rights Act do in fact include protections for other classes of individuals, including LGBT people. Specifically, Williams cited statutes dealing with bullying and domestic violence. Martin didn’t rule on the question of whether Act 137 was unconstitutional in itself, however. A few weeks later, Arkansas Attorney General Leslie Rutledge appealed the ruling to the state Supreme Court.
This morning, state Solicitor General Lee Rudofsky argued the state’s case before the justices. Also named as a plaintiff in the case is Protect Fayetteville, formerly known as “Repeal 119,” a group formed to oppose the civil rights ordinance. Travis Story, an attorney for Protect Fayetteville, was in the court today, though Rudofsky presented arguments for all plaintiffs. Also present was Rep. Bob Ballinger (R-Hindsville), who helped pass SB 202 in 2015, and who is an attorney at Story’s Fayetteville firm. Two amicus briefs in support of Fayetteville were filed by the American Civil Liberties Union of Arkansas and 31 Arkansas employers, in a brief written by Little Rock attorney Clarke Tucker (who is a Democratic representative in the legislature).
Rudofsky told the justices this morning that Fayetteville’s “interpretation of the act would neuter it.” His argument hinged on the question of what exactly is meant by the phrase “on a basis not contained in state law.” Although the anti-bullying and domestic violence statutes pointed to by Fayetteville do indeed mention LGBT people, Rudofsky said it was wrong to assume that equal protections for LGBT people were therefore a part of the “basis” of state law. “On a basis” implies the “entire system” of Arkansas code, he argued. Rudofsky noted that the anti-bullying statute also includes mention of bullying due to socioeconomic status, academic status and physical appearance. Unlike the Civil Rights Act, he said, it does not mention “discrimination” specifically.
Rudofsky also argued that Act 137 was not unconstitutional, and that the legislature’s effort to ban more inclusive local civil rights ordinances was merely the state protecting its legitimate interest in ensuring “uniformity of law” throughout Arkansas, rather than a “patchwork” that varied according to municipality. (The law is titled the “Intrastate Commerce Improvement Act” and was billed as an attempt to make a more consistent environment for business — despite the fact that many businesses support extending civil rights protections to LGBT people and contain their own nondiscrimination policies.)
However, the Supreme Court typically would not consider a question regarding an underlying statute’s constitutionality if the ruling by the lower court didn’t address the issue. Rudofsky acknowledged Judge Martin did not rule as to whether Act 137 was constitutional, but said the justices should waive their rule in this case and decide the constitutional question, too, for the sake of “efficiency.” (If the court overturned Martin’s decision as to whether the city was in compliance with Act 137, but declined to take up the constitutional question, the case would be sent back to the trial court level — which would likely mean it would eventually find its way back before the justices.) Act 137 “does not discriminate” on the basis of sexual orientation or gender identity, Rudofsky said.
Associate Justice Rhonda Wood told Rudofsky she followed his argument that discrimination wasn’t specifically mentioned in the bullying statute. But she pointed out that the bullying law does seem to give “protection to other classifications like sexual orientation. … And, if really the intent [of Act 137] was to say the only basis is the Arkansas Civil Rights Act, why didn’t the legislature say that?”
Rudofsky replied that “it seems a very strained interpretation of the statute to say that something like sexual orientation or gender identity is a ‘protected classification’ when state law does not provide 99 percent of the discrimination protections that it could. If you’re talking about how a common person would understand the ordinary language of ‘What is a protected classification,’ it’s a classification to which the state has given the full … bundle of discrimination protections.” The operative fact isn’t a class’s inclusion in the Civil Rights Act specifically, he said, but whether the state protects the class against discrimination throughout the Arkansas code. “As to race … it’s not because it’s in the Civil Rights Act,it’s because that act gives race the full protection in the employment sphere, in the housing sphere, in the property transaction sphere … In all of the ways that it could possibly protect race, it does. That is obviously not true of sexual orientation or gender identity, or other classifications like socioeconomic status and academic status and physical appearance. That’s the core of our argument why the state hasn’t made this a protected classification.”
Associate Justice Courtney Goodson asked Rudofsky about the idea that “animus could be a motivating factor” in the creation of the law in the first place — that is, that the legislature’s intent in passing SB 202 was to treat LGBT people differently. But Rudofsky said that the court “cannot use cherry-picked statements of one or two or three legislators … and divine the motives of the entire legislature.”
Attorney Kit Williams began by pointing out that the law in question was passed by Fayetteville voters. He said the court should not waive its longstanding rule and take up the constitutional arguments regarding the statute.
Associate Justice Shawn Womack seemed skeptical as to whether the anti-bullying statute created a “protected class” of individuals. “In fact, it did create a protected class,” Williams replied. “It protected students — hundreds of thousands of Arkansas students, tens of thousands of Arkansas staff and teachers — all of those people during the school day from the type of intimidation humiliation and ridicule, the same sort of things that the Arkansas Civil Rights Act protects.”
Womack said Williams was asking the justices to abandon the accepted definition of “protected class.” He cited a statute regarding property theft by way of example: “I own personal property. … Can the city of Fayetteville say anyone who owns personal property be a protected class, because of the mention in the statute? … Anyone who’s the victim of property theft?” Williams didn’t feel the two were comparable. The idea that LGBT people need protection from discrimination was “recognized by the legislature that was brave enough to put them into the anti-bullying statue, and I think that was appropriate,” he said.
Justice Wood pointed out that the plain language of Act 137 states the legislature’s intentions. “Their specific intent was to avoid having cities with different ordinances and different protections … across the state. They said that was the purpose; that’s in the act. So how do you get around the plain language of the act said it was to prevent exactly the ordinance that was passed?” she asked
Williams said he wasn’t trying to get around the language of the statute. “The most important thing is what [a city] can and cannot do. … What a city cannot do is create a new protected class. ‘Create’ is a very important word. That doesn’t mean we can’t use a protected class that’s already in existence under state law, and the statute also says that we can look anywhere in state law. … If they wanted to say “in the Civil Rights Act’ they could have easily put that in there.
“We don’t think that when a schoolchild leave the school building and walks into the streets of Fayetteville that they should lose their protection against discrimination based on their sexual orientation or gender identity. We feel like that protection should go with that child when they go down to the coffee shop, when they go to their parents’ apartment, when they for a job. They should not be discriminated against there, just like they are not allowed to be discriminated against in school. We feel like that is not a jump,” he said.