Last year's Fayetteville campaign for the Chapter 119 anti-discrimination measure was a full-on battle to establish a beachhead for expanding protections for gay and transgender people in Arkansas.
It proved more than even a diversity-embracing college town in the Ozarks could embrace. The City Council was out of step with the public, and voters rejected their heavy-handedness in a referendum.
What’s the point?
A vote for Ordinance 5781 in Fayetteville will make a statement for equality.
Come Sept. 8, voters will again have the opportunity to consider an anti-discrimination ordinance in Fayetteville, but it's nothing like last year's defeated proposal. The 2015 Uniform Civil Rights Protection ordinance, if anything, is a prime example of crafting measure to reduce resistance, so much so that the Human Rights Campaign that pressed so strongly for the 2014 ordinance will not lend its support to this year's effort. It's too weak, that national organization suggests.
Local advocates, however, emerged from last year's defeat ready to adapt a new ordinance to realities on the ground rather than lofty ambitions. Meeting with business representatives, such as the Fayetteville Chamber of Commerce, and heeding other complaints, advocates set out to craft a simpler ordinance, one with a meager fine ($100, first offense) and a confidential mediation process to give offenders and offended an opportunity to resolve their differences in private. The result was Ordinance 5781.
"You just keep going down the list of things we objected to, and they were taken out," said Steve Clark, president of the chamber and a former Arkansas attorney general.
Backers borrowed language from existing state laws, including the Arkansas Civil Rights Act and Arkansas Fair Housing Act, to guarantee within a municipal ordinance "the right to obtain and hold employment without discrimination" and "the right to the full enjoyment of any of the accommodations, advantages, facilities or privileges of any place of public resort, accommodation, assemblage or amusement." It would prohibit discrimination in housing.
Like the state Civil Rights Act, the ordinance only applies to an employer " who employs nine or more employees." The proposed ordinance declares "churches, religious schools and daycare facilities and religious organizations of any kind shall be exempt." Violation would not be a crime, but just an infraction of a city ordinance.
The more active advocates and opponents represent the extremes on this matter.
Some jump at the chance to vote in favor of any ordinance labeled as an anti-discrimination measure. The details don't matter. As long as the goal is to make a statement about equality, to remove real or imagined impediments to enjoyment of life by gay, lesbian, transgender or bisexual people, these folks will back it.
On the other end of the spectrum are those who view any legal acknowledgment of rights based on sexual preference or gender identity as an affront to God, an embrace of an abomination of human behavior and a quick on-ramp to the slippery slide toward hell. Some view the law as an infringement on religious freedom, a definite gray area in a society where some people believe homosexuality is incompatible with the teachings of their faith while others of the same faith believe they're called to welcome all.
No commentary or concern will move the folks at the extremes off their positions. The battle, as is the case in so much of today's politics, is for the folks in the middle who can at least see that using municipal government as a tool for civil rights enforcement is complicated and not the best approach. Who, after all, believes an actual civil right can or should exist in one city yet be entirely lost only by crossing over into the community next door?
Both sides are overselling their positions.
"I am so excited about the possibility of making our city totally discrimination-free," Alderwoman Adella Gray said at a July 13 rally for the ordinance. It will, of course, do nothing of the sort. When a civil rights ordinance exempts all businesses with eight or fewer employees, that leaves a huge number of companies unaffected. That wedding photographer who declines to shoot a same-sex marriage? That is discriminatory, but not within Fayetteville's proposed law.
Opponents have focused, inaccurately, on the scare tactic involving public restrooms. The impact they envision includes women's bathrooms overrun with men declaring themselves to be women, with women and girls powerless to do anything about it. They're focused on horror stories, situations that can be addressed by existing laws, rather than the unfairness of someone being denied a job or housing solely because he or she is gay or transgender.
Fayetteville's proposal is a weak law by a level of government ill-suited to enforcement of civil rights issues. It adds bureaucracy to an individual's pursuit of a complaint by forcing them to go through a mediation process, then a City Council-appointed civil rights commission before the affected party can actually have his day in court before an impartial judge. Supporters say the reason for the more convoluted approach is a desire to work things out rather than just enforce a penalty.
The reality for the LGBT community is it has little to no immediate hope of achieving protection from discrimination from state lawmakers. Indeed, our lawmakers specifically passed a law in their last session designed to prevent cities from adopting ordinances precisely like the one Fayetteville will consider on Sept. 8. The drafters of Fayetteville's Ordinance 5781 believe they've found cracks in that law's foundations wide enough to navigate this ordinance through. They believe they've threaded the needle. We're not so sure, and litigation over the ordinance is almost a certainty if voters support it.
We, like others in Fayetteville, are torn. As we've outlined, this ordinance isn't the best approach. Protection of civil rights at the federal level makes the most sense. But also like most folks, we oppose discrimination in housing, employment or business based on reasons that have nothing to do with a person's ability to do a job or be a good tenant or pay for a service. Is Ordinance 5781 the right mechanism to achieve that?
This election is technically about an ordinance, but the reason it's on the ballot is a desire among city leaders to establish as a matter of public policy that the city is a community that welcomes diversity, that embraces equality. It's about formally making a statement in government policy in a town that used to make such statements by the daily actions of its business establishments, its residents and its institutions. Keeping Fayetteville "funky" was once just an outcome of the city's vibe. Now, it's got to be an ordinance.
The ordinance is far from perfect. There are plenty of reasons to not be thrilled with it, but the worst elements of last year's over-reaching proposal are gone. When voters get their chance to mark a ballot, they should say yes. It won't end discrimination. But it will affirm that Fayetteville strives to be inclusive and welcoming to all.
Commentary on 08/30/2015