You have to imagine that the legislative brains behind SB 202 — which will become Act 137 on July 21, 90 days after the official end of the General Assembly — must feel some regret at waking the big, gay bear. The bill, sponsored by Sen. Bart Hester (R-Cave Springs) to prevent cities from following the lead of Fayetteville, which saw its pioneering LGBT protection ordinance repealed by a narrow margin in December 2014, was supposed to strip cities and towns of the ability to protect their LGBT residents against discrimination by forbidding municipalities from extending protections to any class not already covered by state law. It hasn’t worked out that way, however.
The day SB 202 passed, there were no local governments in the state with protections for LGBT employees or citizens. As of this writing, there are three and counting: Eureka Springs, Conway and Little Rock. Other cities, including Bentonville and Jonesboro, have considered the issue, and the controversy over anti-gay measures like SB 202 has spurred well-attended marches and rallies in support of LGBT rights all over the state. Pulaski County, following the lead of a successful vote by the Little Rock City Board on April 21, is set to vote on protections for LGBT county employees soon after we go to press this week.
The Little Rock and Conway ordinances, like the proposed ordinance for Pulaski County, protect LGBT city workers and job applicants from discrimination based on their sexual orientation and gender identity and requires those who wish to do business with the city to do the same. On May 12, after a grueling and sometimes ugly fight, Eureka Springs voted by more than a 2-to-1 margin, 579 to 231, to preserve its unique-in-the-state LGBT protection ordinance, which imposes financial penalties on anyone found to have discriminated against LGBT people in employment, housing or public accommodations within the city limits.
With July 21 looming and municipalities insisting that their ordinances will be valid and enforceable even after Act 137 goes into effect, questions remain as to what the next step will be on both sides of the issue. Many believe a lawsuit and clarification by the courts as inevitable. How the matter will wind up before a judge, however, is still up in the air.
Carroll County Justice of the Peace Lamont Richie-Roberson, who authored Eureka’s Ordinance 2223 and helped spearhead the fight to see it retained, said that opponents of LGBT protection ordinances across the state were clearly considering their options for challenging the issue in court.
“People are going to do what they’re going to do,” Richie-Roberson said. “All I know is that there was never any intent to do anything with this ordinance other than to address human rights, and to include people who needed to be included who weren’t included. That’s all that this was about.”
Richie-Roberson said that while people have been doom- shouting about litigation over the Eureka Springs ordinance since it was proposed, it will take an egregious act of discrimination to trigger a lawsuit. “It’s not like somebody can go down to the mayor’s office and say, ‘Hey, I was discriminated against,’ and the discriminating person will be hauled into court,” Richie-Roberson said. “That’s not how it’s going to work. There’s going to be an investigation, the mayor is going to have to be satisfied that it’s more true than not that the ordinance was violated, the police will have to issue the citation, and when they get to court, [the police are] going to have to prove to a judge that it happened. … I hope that nobody fabricates a complaint in order to get it into court to cause a stir.”
Holly Dickson, staff attorney for the Arkansas ACLU, said that while she believes municipalities were within their rights to pass LGBT protection measures, there is enough disagreement over Act 137 and the ordinances that the courts are eventually going to have to weigh in. However, it’s not as easy as an opponent simply filing a lawsuit.
“You or I couldn’t say, ‘Your honor, we’re just really curious about what this means; whether the state law and the ordinance can live together harmoniously or if the state law is unconstitutional. Tell us.’ That’s not going to suffice,” Dickson said. “Absent an actual case, controversy or need to get some declaration from the court on what that law means, they’re not going to be able to stay in court. You have to have a hook. I don’t know what sort of action they might be bringing, but it has to have some substance to it and be ripe and in need of court decision before it’s a valid case or controversy that a court has jurisdiction to hear.”
Deputy Pulaski County Prosecuting Attorney Barbara Mariani, speaking as a member of the Arkansas Stonewall Democrats, said she agreed with an opinion by Little Rock City Attorney Tom Carpenter, who has argued that the LGBT protection ordinances across the state don’t actually violate Act 137. As written, the act has a specific clause that says no local government can create a protected class that’s not already protected in state law.
“If you look at our bullying law, it clearly covers sexual orientation and gender identity,” Mariani said. “It’s a state statute, and it clearly protects that group. They’re trying to claim, ‘Hey, you’re trying to create a new protected class.” No we’re not. That protected class already exists under Arkansas law. … If a judge doesn’t buy that argument or doesn’t find it persuasive, the next argument is, ‘[Act 137] is unconstitutional.’ “
Mariani said that because the Eureka Springs ordinance is broader than those found elsewhere, it will be easier for those who want to challenge Act 137 or the ordinance to find standing there for a court challenge.
“I see it as a bigger realm, because it’s much more specific,” she said. “It’s broader. It applies to more things. So yes, it would be easier for people who want to challenge these ordinances to get standing in Eureka Springs.
John DiPippa, dean emeritus of the University of Arkansas at Little Rock’s William H. Bowen School of Law, said that he believes the interpretation of Act 137 by Carpenter is valid, and that the LGBT protection ordinances throughout the state will not become null and void once Act 137 goes into effect in July.
“There is a reasonable interpretation of these laws that suggests that most, if not all, of them are valid after Act 137 goes into effect. … It is not self-evident that these laws violate 137, so there is no reasonable basis to assert that they are void,” DiPip-pa said.
Like Mariani and Dickson, DiPippa said that a court challenge would require a person to claim they’ve suffered a “legal injury” from one of the ordinances in order to claim standing. DiPippa said that the challenge could come from one of several directions.
First, DiPippa said, because the city ordinances in Little Rock and Conway include provisions that forbid companies that wish to contract with those cities from discriminating against their own employees, a business that doesn’t want to sign an LGBT nondiscrimination pledge could claim the law is illegal under Act 137.
Another avenue for a challenge, he said, could come from someone who believes he or she has suffered discrimination based on sexual orientation or gender identity in Eureka Springs despite its ordinance. That person could then sue the city of Eureka Springs for failing to enforce the law.
“Finally,” DiPippa said, “Arkansas has a broader understanding of standing than the federal courts and sometimes will allow taxpayers to prevent cities from enforcing an illegal law. This is called ‘illegal exaction.’ This may only apply to spending laws, but I suppose someone could say that because the city must spend money to enforce its anti-discrimination ordinance and because those ordinances may violate 137, the taxpayer has injury.”
Asked if a successful challenge of the ordinance in Little Rock or Conway would render LGBT protection ordinances across the state invalid, DiPippa said that technically, it would not.
“A court order only binds the parties [involved in a particular suit], but we usually expect public officials to follow authoritative court orders on identical issues,” he said. “If this situation arises, I would expect the order to be stayed pending an appeal to the Arkansas Supreme Court, thus avoiding the situation.”