EUREKA SPRINGS -- The city is now the only one in Arkansas with an ordinance prohibiting discrimination against gay people in employment, housing, business and public accommodations.
Mayor Robert D. "Butch" Berry signed Ordinance 2223 late Tuesday morning. Aldermen rushed the ordinance through three readings at Monday's council meeting -- and unanimously approved it each time.
Berry said the sense of urgency was because of Arkansas Senate Bill 202, which would prohibit cities from enacting or enforcing such ordinances.
"It was something I felt needed to be done prior to the state enacting a law telling us things we can't do," he said.
State Sen. Bart Hester, R-Cave Springs, introduced SB202 on Feb. 2. It passed 24-8 in the Senate on Monday.
Hester said Monday he expects SB202 to pass in the House and be on Gov. Asa Hutchinson's desk for his signature in two weeks. Hester said he believes passage of SB202 would nullify any current civil-rights ordinances in the state.
SB202 says its purpose "is to improve intrastate commerce by ensuring that businesses, organizations and employers doing business in the state are subject to uniform nondiscrimination laws and obligations."
SB202 was referred to the House Committee on City, County and Local Affairs, which meets today. But it may not come up in today's meeting, said Rep. Bob Ballinger, R-Hindsville, who is sponsoring the bill in the House.
If SB202 is passed in committee today, it could be on the House floor for consideration as early as Friday, Ballinger said.
Ballinger said Ordinance 2223 may be law in Eureka Springs for the moment -- but possibly not for long.
"If we get this bill passed, it bars the implementation or enforcement of ordinances that create any new protected classes," Ballinger said.
By "protected classes," Ballinger was referring to four categories mentioned in Ordinance 2223 that aren't already protected under federal or state anti-discrimination laws -- "real or perceived" sexual orientation, gender identity, gender expression or socioeconomic background.
Ballinger said other "classes" mentioned in the Eureka Springs ordinance that already have state or federal protection would continue to be "legitimate" protected classes. Those include race, ethnicity, national origin, age, gender, familial status, marital status, religion, disability or veteran status.
"The things that are not protected under state or federal law will be voided when this bill passes," Ballinger said of SB202. "If they would like to see those as new protected classes, they need to get a legislator to put that bill together and we'll debate it in the state Legislature."
Ballinger said if SB202 passes, and Eureka Springs continues to enforce its Ordinance 2223, the city could lose a court challenge, if it came to that.
"There won't be an opportunity for them to try it in their City Council," said Ballinger. "They'll have to go before a legitimate court, and a legitimate court will throw it out. They'll essentially say they don't have any right to enforce that ordinance. They'll lose in court if they try to enforce that ordinance."
Berry said passing the ordinance wasn't an attempt to invite a legal challenge.
"I hope we're not inviting an expensive lawsuit," he said. "That is not what I want to do. That was not my purpose in signing this. It was to protect the rights of a group of people. ... From my understanding, they're not protected under state and federal laws."
Berry said he hates to rush things through the council with an emergency clause, but this time it was necessary.
"The way the state was acting, this was almost a reactionary ordinance," he said.
Eureka Springs is often at the vanguard of gay-rights issues in Arkansas. The first same-sex marriage licenses in Arkansas were issued in Eureka Springs in May. The city has had a domestic partnership registry since 2007 and has made health insurance coverage available for domestic partners of city employees since 2011.
The City Council considered an anti-discrimination ordinance in September, but voted it down 3-2, with some council members saying the law was unnecessary in such an open-minded city. Since then, the ordinance has been redrafted and a new alderman is on the council.
Carroll County Justice of the Peace Lamont Richi, a former lawyer who lives in Eureka Springs, said he drafted the new ordinance based on one Fayetteville's City Council passed in August that was repealed in a vote Dec. 9.
A major difference, Richie said, is Fayetteville's ordinance called for a separate civil-rights administrator. According to the Eureka Springs ordinance, the mayor will also serve as the civil-rights administrator.
Richie said he became aware of SB202 last week. He emailed the mayor and City Council on Saturday asking them to consider a resolution against the bill.
"I knew the City Council would be meeting last night, then not again for two weeks," Richie said. "I also knew it was too late to get something on the agenda and published in the paper. So I decided to work on a resolution."
But Alderman James DeVito called Richie on Sunday saying he wanted to bring an anti-discrimination ordinance back before the council. So Richie spent Sunday and Monday working on the draft.
"We could have waited two weeks, but in all likelihood the bill would have been passed by then," Richie said. "It was Hester's bill that got everything moving this quickly. ... It was important that Eureka Springs adopt this ordinance and certainly before Hester's bill becomes law."
Richie said SB202 is an obvious attempt to "negate or thwart" any efforts to include lesbian, gay, bisexual or transgender protections in a local nondiscrimination ordinance.
"It's an overreach by the state," said Richie. "It's an improper interference to keep the local communities from handling these matters on their own. ... There are abuses against people because of their sexual orientation all over the country."
Richie said he was "ecstatic" about the outcome of Monday's meeting.
"What happens after today, we'll just deal with that when it happens," he said.
DeVito said there's no reason to repeal the ordinance if SB202 passes in the Legislature.
"There's no reason for us not to keep our ordinance in place," he said. "We had every right to do what we did last night."
The Eureka Springs ordinance protects civil rights for residents and visitors. Attempts to settle disputes will be made through mediation. Fines for violations range from $100 to $500.
Mike Bishop, president of the Eureka Springs Chamber of Commerce, said he didn't know enough about the new ordinance to discuss it on Tuesday.
"It's kind of caught everybody by surprise," Bishop said. "Nobody here wants to be discriminatory, and I don't think they are. The concerns are what pressures or restrictions it might impose on businesses."
Bishop said his main concern was the "expedience" with which the new ordinance was passed. Members of the business community didn't have an opportunity to study it or speak before the council, he said.
Terry McClung, the only alderman who missed Monday's meeting, said he was out of town and didn't know anything about the proposed ordinance.
"It came as a complete surprise," he said.
NW News on 02/11/2015