Despite Attempts at Change, Turning Away Gays Is Legal

Reporters from across the country were waiting when Arizona Gov. Jan Brewer emerged from a day of private meetings to veto a bill defending business owners who turn away gay couples or other customers for religious reasons.

Brewer, a Republican, defied a Republican-controlled legislature with her veto, to immediate relief and celebration from the bill's liberal and conservative opponents.

At a Glance

Discrimination Protection

Northwest Arkansas groups are divided in whether they prohibit discrimination against customers and employees on the basis of sexual orientation. Most don’t.

With the protection:

• University of Arkansas

• Walmart (also protects gender identity)

• Tyson Foods

Without the protection:

• Bentonville

• Rogers

• Springdale

• Fayetteville

• Benton County

• Washington County

• J.B. Hunt Transport

Source: Staff Report

Similar bills in Kansas, Missouri and other states also have met strong opposition.

Lost in the outcry, however, is that turning away gay, lesbian, bisexual and transgender people from restaurants, hotels and grocery stores is legal in 29 states, including Arkansas and every state bordering it.

In all those states the law goes further, allowing landlords and employers to evict and fire people who aren't straight without legal repercussion. Efforts over the years from Fayetteville's City Council and a state representative to change the law failed.

"It's just kind of overkill," James Rector, president of the NWA Center for Equality in Fayetteville, said of the bills. "Where does the discrimination stop?"

A Legal 'Mess'

Under federal and state law, public businesses and accommodations generally can't discriminate against customers or employees based on a variety of characteristics, including race, religion, age, sex or disability. These categories are called protected classes.

Religious organizations are exempt for hiring decisions -- a Catholic church can hire only Catholics if it wants, for example.

Sexual orientation often isn't considered a protected class, though some local governments and states have added it to their laws.

"You can't speak in terms of red state and blue state, it's more speckled," said Mark Killenbeck, a law professor at the University of Arkansas who specializes in constitutional law. "At the state level you may not have measures, but at the local level you will."

Most of the states considering these bills don't have that protection. Their supporters point to lawsuits against business owners who turned away same-sex couples in Washington, Colorado and New Mexico -- states that protect sexual orientation.

The bills might aim to prevent more liberal cities from extending their protection, said Don Judges, a law professor who's taught constitutional law and civil rights. Simply saying gay people can't be protected is illegal after a 1996 Supreme Court decision against Colorado's attempt to do just that.

"If you have a statewide carve-out like this, it's a hedge against localities," Judges said. "A state can't enact a statewide ban on anti-discrimination measures, at least like the one in Colorado, without coming up with a good reason for it. So what's left? One effort is what you're seeing now."

The bills also could be trying to anticipate future rulings from a legal system in flux, Killenbeck said. So far this year, federal judges have struck down bans on same-sex marriage in Texas, Oklahoma, Kentucky and Utah. And though the U.S. Supreme Court struck down a federal ban last year, it hasn't resolved the question of sexual orientation as a protected class.

"It's a complete and total mess," Killenbeck said. "The bottom line here is we have a rapidly changing landscape over the course of the last two years, in terms of general movement toward acceptance. It's not going to change the minds of the people who are deeply, deeply, bitterly opposed."

Local Efforts

Fayetteville residents have tried to add that protection twice in the past 20 years and both attempts failed.

The City Council tried to add sexual orientation to its nondiscrimination policy for city employees in 1998.

The move sparked an immediate, months-long controversy. The council approved the change but was overridden, first by the mayor, then the city's voters in a referendum, because of religious objections and fears the change would apply to all employers.

In 2005, Lindsley Smith, then Fayetteville's state representative and a Democrat, introduced a bill to add sexual orientation to the state's nondiscrimination law, treating it the same as religion, gender and other classes.

She withdrew it shortly afterward because opposition was so strong. Opponents said the bill could require companies to hire gay and lesbian people as a kind of affirmative action, or would prompt too many lawsuits.

Smith, who's now a spokeswoman for Fayetteville, said her bill, while unsuccessful, prompted valuable discussion.

"Everybody was happy that a legislator of Arkansas would file it, you know, and push that," she said Thursday. "They said later it went a long way to change attitudes. You've got to drop the bill in the hopper. Then it opens the dialogue."

Rector, the Center for Equality director, said he knows people who have been discriminated against in Arkansas. But he echoed Smith, saying opinions have changed in recent years.

A bill like Smith's hasn't been proposed since, but neither has a bill like Arizona's, and support among conservatives seems relatively soft.

"I don't believe in turning people away because of religion," said Rep. Micah Neal, R-Springdale, who also owns Neal's Cafe. "If they act properly while they're inside, their money's as green as anybody else's."

State Sen. Bart Hester, R-Cave Springs, said he supported a baker being able to decline making a wedding cake for a same-sex couple, for example. But he also supported business owners dealing with consequences, such as a customer backlash.

Jerry Cox with the conservative Arkansas Family Council said laws like Arizona's would go both ways, including protecting a gay business owner who declines to serve anti-gay customers.

"If you hold yourself out to be a public business, I think you're there to serve the public," he said. "But on the other hand, I don't think it's the role of the government to make everybody be nice."

NW News on 03/02/2014

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