Arkansas Supreme Court Rules Adding Homosexuality to City Discrimination Ordinance Violates State Law

Photo Credit: George Hodan

LITTLE ROCK, Ark. — The Arkansas Supreme Court unanimously ruled on Thursday that a move to add “sexual orientation” and “gender identity” to a local discrimination ordinance violates state law.

Citizens in Fayetteville had voted in 2015 to approve an ordinance asserting that “[t]he right of an otherwise qualified person to be free from discrimination because of sexual orientation and gender identity is the same right of every citizen to be free from discrimination because of race, religion, national origin, gender and disability as recognized and protected by the Arkansas Civil Rights Act of 1993.”

But that same year, state legislators had first passed the Intrastate Commerce Improvement Act, which bans local municipalities from creating additional protected classes that are not already expressly cited in state law. The Arkansas Civil Rights Act does not mention “sexual orientation” or “gender identity.”

Therefore, the Fayetteville ordinance was challenged in court by the group Protect Fayetteville with support from Attorney General Leslie Rutledge. In March 2016, Washington County Circuit Judge Doug Martin upheld the measure as being permissible as the Arkansas Constitution mentions the classes in regard to anti-bullying, birth certificates and shelters for victims of domestic violence.

“Clearly, the classifications of gender identity and sexual orientation were classifications of persons protected on bases contained in state law prior to the enactment of Ordinance 5781,” Martin wrote. “As such, Ordinance 5781 does not create a protected classification on a basis not contained in state law and, therefore, the ordinance does not violate the plain meaning of the language used in the first prong of Act 137.”

Rutledge appealed, and on Thursday, the Arkansas Supreme Court unanimously ruled that the Fayetteville ordinance did indeed violate state law.

“In essence, Ordinance 5781 is a municipal decision to expand the provisions of the Arkansas Civil Rights Act to include persons of a particular sexual orientation and gender identity. This violates the plain wording of Act 137 by extending discrimination laws in the City of Fayetteville to include two classifications not previously included under state law,” it declared.

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“This necessarily creates a nonuniform nondiscrimination law and obligation in the City of Fayetteville that does not exist under state law,” the court said. “It is clear from the statutory language and the ordinance’s language that there is a direct inconsistency between state and municipal law and that the ordinance is an obstacle to the objectives and purposes set forth in the General Assembly’s Act and therefore it cannot stand.”

Fayetteville City Attorney Kit Williams told reporters that while he is disappointed with the ruling, he intends to work to have the prohibitive language in the Intrastate Commerce Improvement Act struck down as unconstitutional as the case was remanded back to Martin for further proceedings.

“They can’t, by not using express terms, accomplish the same result—which is truly what their intent was, which was to prevent the city from enacting protections for its gay and lesbian residents,” he told the Associated Press.

Rutledge simply posted on Twitter following the issuance of the Arkansas Supreme Court ruling, “Act 137 requires that discrimination protection be addressed at the state level and be uniform throughout the state.”

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