In a pair of cases today, the Arkansas Supreme Court ruled definitively that state law overrides a Fayetteville ordinance meant primarily to extend civil rights protections to LGBT people. It leaves open a U.S. constitutional question, however.

The Court earlier had ruled that a state law intended to pre-empt local civil rights ordinances was a constitutional use of state power and dismissed the case. But Circuit Judge Doug Martin allowed litigation to continue on a lawsuit intervenor’s newly raised issue he hadn’t decided — whether the state action amounted to unconstitutional discrimination against LGBT people.

The Supreme Court said Martin exceeded his jurisdiction. It found in favor of a group challenging the local ordinance, which had sought an injunction against enforcement of the local ordinance.

Because the circuit court exceeded its jurisdiction on remand, its actions following remand are void. The order denying the preliminary injunction is reversed, and, because the sole issue over which the circuit court properly had jurisdiction was conclusively decided by this court in our 2017 opinion, the matter is dismissed in its entirety.

The decision was unanimous, with Special Justices Hugh Finkelstein and Maureen Hazinski Harrod sitting in place of Justices Courtney Goodson and Jo Hart.

Advertisement

In a related case that also held the action moot, the Court said that it wanted to make some law on items of public interest related to legislative and executive privilege. Those defending the ordinance had wanted to depose legislative sponsors of the state law aimed at killing civil rights protection on the local level and also wanted to see communications with the executive branch.

The Supreme Court said it disagreed with Martin that legislative privilege covered only statements on the floor of the legislature, but said it wasn’t willing to say how far that privilege extended until it had a specific case to consider. It also recognized executive privilege to shield some internal deliberations from the public. Justices Robin Wynne and Karen Baker said the matter should have been dismissed as moot without comment on privilege.

The Fayetteville ordinance was adopted by voters on a second referendum try in a long-running, heated campaign. Religious conservatives funded the opposition to the ordinance because of their belief that people should be able to legally discriminate agasint gay, lesbian and transgender people in hiring, housing and public services.

Some other cities in Arkansas have adopted non-discrimination measures, including Little Rock, which has a policy not to do business with those who discriminate. As yet, that ordinance has not been challenged as illegal under the state pre-emption law.

Attorney General Leslie Rutledge has defended the state law and pushed to have the Fayetteville civil rights ordinance nullified. The law took effect in 2015, with Sen. Bart Hester as lead sponsor. Gov. Asa Hutchinson allowed it to become law.

LGBT people enjoy no protection under state civil rights law. The legislature has passed, and the governor approved, a law that explicitly protects discrimination against LGBT people by any who claim a religious pretext for doing so.

Advertisement

UPDATE: Comment from Holly Dickson of the ACLU:

We are currently reviewing these decisions and determining our next steps in defending the rights of LGBTQ Arkansans. Importantly, no court has yet decided whether Act 137 was unconstitutionally passed to discriminate against LGBTQ residents, a claim that we will continue to pursue.

From the attorney general’s office:

“Today’s unanimous decisions reaffirm the State’s authority to ensure uniformity of anti-discrimination laws statewide and to prevent businesses from facing a patchwork of nondiscrimination ordinances,” said Attorney General Rutledge. “These decisions show that the City of Fayetteville is not above or immune from State law.”