Circuit Judge Doug Martin of Fayetteville has issued a formal order that quashes a state effort to block
requests for information and sworn testimony from legislators and other state officials about the motivation behind the state law that prohibits cities from enacting local ordinances that extend civil rights protection to gay people.

We’d reported previously on the substance of the ruling. But his formal order issued today lays out his finding that the state not only fought the effort to produce information such as e-mails, it also made no reasonable effort to comply with the requests, as the law required. He also rejected an argument that legislators couldn’t be questioned about matters on which they’d engaged in debate. They may not be PROSECUTED for anything they say in a debate, but that’s not an issue in this civil lawsuit. The judge said the request for information was overbroad but most of the issues could have been worked out without court intervention had the state not resisted. The information request targets, first, sponsors of the pro-discrimination law, Sen. Bart Hester and Rep. Bob Ballinger.


The state contends that motivation behind the law is irrelevant.  The state insists that the law in question on its face says nothing discriminatory. Clever, but disingenuous. The law was passed specifically to prevent protection against discrimination not mentioned in the state civil rights law — discrimination against LGBT people. It has always been clear that the law was passed to prevent anyone from doing anything to discourage discrimination against gay people in employment, housing or public accommodation. When Fayetteville passed such an ordinance, and it survived a vote repeal effort, those who favor gay discrimination sued to enforce the state law. The Arkansas Supreme Court has upheld the pre-emption law, but didn’t rule on whether it amounted to unconstitutional discrimination against a specific class of people.

The judge quoted a brief filed by PFLAG, a gay rights support group, that cited a federal court ruling  that says “even a facially neutral statute is unconstitutional when there is proof that a discriminatory purpose was a motivating factor in its adoption.” He said “animus” on the part of the legislature is extremely relevant. He also said there was no basis in law for a claim of executive privilege asserted by the state for the governor, lieutenant governor, attorney general and others.


The judge also rejected the state’s request for a protective order on any material produced. “The court can conceive of no irreparable injury” of denial of a protective order. Think about it. The state wants to make secret why it passed a public law?

Discrimination was THE motivating factor in passage of this law. Any honest legislator or lawyer would admit as much. But Attorney General Leslie Rutledge and discrimination-law-sponsor Rep. Bob Ballinger’s law firm are on this case, so ……


The judge’s order is worth reading, but I’m having trouble convering the PDF to a form thaqt can be poste4d, to understand how hard the state is fighting having to admit what this is all about. Fayetteville is defending its ordinance and the ACLU and PFLAG have joined to help. The judge said there will still be a time for the state to assert privilege on specific points, such as attorney-client communications.