A few weeks back a fundraising invitation arrived from “For Fayetteville,” the ballot group supporting an antidiscrimination ordinance to be considered by the city’s voters on Sept. 8. After several days of pondering, I ultimately decided to drop by the back room of Doe’s in Little Rock with a small check. The reason for the hesitation: The ordinance has real flaws in terms of the breadth of its religious exemptions. In the end, however, the substantive and symbolic gains for LGBT rights in the state that would come from a victory by the measure outweigh the ordinance’s very real flaws.
Last December, a broad LGBT antidiscrimination ordinance passed by Fayetteville’s city council was overturned in a low turnout special election by a vote of 52 percent to 48 percent. In the campaign leading to that outcome, key leaders in the city’s Chamber of Commerce raised concerns that the legislation criminalized the actions of business owners based on imprecisely defined provisions. Taking a different tack, religious advocates like Michelle Duggar beat the drum that the legislation made it probable that trans men would invade girls’ bathrooms. (Duggar’s fear-mongering robocall closed: “Parents, who do you want undressing next to your daughter at the public swimming pool’s private changing area?”).
Not only did advocates of equality lose that Fayetteville vote, the original ordinance sparked the introduction of SB 202 by Sen. Bart Hester. It became Act 137 when Gov. Asa Hutchinson (noting his concern about its intrusion into local governments’ policymaking) allowed the legislation to become law without his signature. Act 137 bars localities from enacting antidiscrimination provisions covering categories not already protected in state law aside from those regarding their own employees. Despite the warning from Hester and other legislators that their provisions violate the state legislation, five cities and counties have passed legislation in recent months ranging from laws covering city contractors to Eureka Springs’ more far-reaching ordinance. (Two others — North Little Rock and Conway — have passed policies covering only city employees.)
In an attempt to make Fayetteville the eighth Arkansas city or county with an antidiscrimination ordinance of some sort covering LGBT individuals, local advocates returned to craft an ordinance that would meet many objections of the business community that had been key to the original Fayetteville ordinance’s defeat. In addition to linking to categories somewhere else in state law, the compromise “Uniform Civil Rights Protection Ordinance“ is more precise in its key definitions, develops a city commission to hear complaints and creates a multi-stage process for resolving a conflict before a violation becomes a criminal prosecution. Learning a lesson from Eureka Springs’ success in passing an ordinance, the sponsors of the ordinance also sent it directly to a vote of the people before it becomes law.
Problematically, however, the ordinance also includes a broad carve out for religious entities stating that “[c]hurches, religious schools and daycare facilities, and religious organizations of any kind shall be exempt” from the ordinance. While churches and other places of worship are clearly exempt from such ordinances under the First Amendment, the exception becomes more problematic as one moves to pre-K facilities that receive state funding and, especially, to the catch-all phrase “religious organizations of any kind.” While the original ordinance was criticized for its imprecise language by business entities, this broad phrase gives some civil libertarians similar pause particularly in the aftermath of last year’s Hobby Lobby decision by the U.S. Supreme Court.
In some ways, the new Fayetteville ordinance is similar to a recent Utah compromise that creates a statewide LGBT antidiscrimination law but creates a broad religious exception palatable to Mormon leaders with outsized power in the state. Commentators have simultaneously celebrated the Utah Compromise as a stroke of genius in terms of making progress in a religiously conservative locale and as a capitulation to bias dressed up as religious belief.
Could Fayetteville have passed a broad ordinance tidied up to satisfy business leaders but lacking the broad religious exemption? The experience from neighboring Eureka Springs (where over 70 percent of the city’s voters supported equality) tells us that the odds were quite good. Such a move would have been preferable. But, it’s just as clear that the ordinance to be voted on by Fayetteville voters in the next couple of weeks will be a significant step forward for equality in one of the state’s progressive enclaves and has symbolic importance because of the loss there just nine months ago (although with the passage of SB 202, the battle over HB 1228, and the U.S. Supreme Court marriage equality ruling, makes that nine months feels like an eternity).
Fayetteville’s revised ordinance is deeply imperfect, but we all know that true equality on LGBT issues will come only with the passage of federal legislation such as the proposed Equality Act. In the meantime, with the perfect unavailable, the good is good enough.