Between the lines: Cities defy lawmakers' intent

Future of local laws may still rest in Legislators’ hands

Eureka Springs fully intends to enforce its anti-discrimination ban. So, too, will Little Rock, Hot Springs and Pulaski County.

That's despite the fact a new state law specifically denying cities and counties the authority to have such ordinances became effective last week.

The state law is Act 137, passed by the Legislature earlier this year, ostensibly for the purpose of improving interstate commerce by providing uniform nondiscrimination laws across Arkansas. Those who opposed the state law saw it more as a means to enable discrimination against gays by eliminating gay rights ordinances, which have been passed in several Arkansas cities and counties.

Eureka Springs enacted its anti-discrimination ordinance in February and recently amended it to make more certain it might withstand a court test.

Act 137 became effective on July 22, exactly 90 days after the Legislature adjourned, as did several hundred other new laws. But this one almost certainly promises a court challenge.

Under the new law, a county, municipality or other political subdivision of the state "shall not adopt or enforce an ordinance, resolution, rule or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law."

Sponsors of the legislation thought that would eliminate protections based on sexual orientation and gender identification because federal and state civil-rights law doesn't include the classifications.

The city attorney in Little Rock, who has since drawn support from some other lawyers, contends other state law does provide protections for sexual orientation and gender identity. They are in an anti-bullying law and another law involving domestic-abuse shelters.

Of course, sponsors of the law don't agree and one of them, state Rep. Bob Ballenger, R-Hindsville, has asked the state's attorney general to weigh it.

He wrote Attorney General Leslie Rutledge, asking her about the potential conflict between Act 137 and the Eureka Springs ordinance. He also questioned potential conflict with ordinances passed in Little Rock, Hot Springs and Pulaski County and another ordinance that will be presented in September to Fayetteville voters.

"I and most honest attorneys agree that the ordinances in Fayetteville and Eureka Springs are unenforceable because of Act 137," he said last week, asserting an attorney general's opinion will clarify the matter.

Not necessarily.

Although instructive, attorney general's opinions are not legally binding. It will take court action to resolve the issue.

Or, possibly, it will take definitive action by a future Legislature to make its intentions more precise.

Even a successful lawsuit to uphold existing anti-discrimination ordinances wouldn't stop that sort of fix, if a future Legislature holds onto the idea that it needs to stop cities and counties from adopting anti-bias legislation. There might still be court challenge to a different law, but the Legislature might still enact one.

The local laws passed so far are slightly different from each other, with Eureka Springs' ban the strictest. It is also the one that won strong voter endorsement as Eureka Springs residents voted in May to retain the ordinance, with seven out of 10 voters favoring it.

Fayetteville's proposed ordinance is scheduled to go to city voters on Sept. 8, apparently with support from some in the business community who helped defeat an early anti-discrimination ordinance in the city.

Fayetteville voters in December overturned a City Council-passed ordinance by 52 percent of the vote, prompting the council to rework the ordinance and refer it directly to voters.

So far, more than 300 business owners have signed pledge cards supporting the newer proposal, which was drawn to answer many of the complaints that business people had raised in the earlier election.

The long-term future of Fayetteville's proposed ordinance, if it passes -- or any of the others that have been enacted -- is nevertheless uncertain.

At least one organization in Little Rock, the Family Council, is reportedly looking for a plaintiff (and funding) to file a lawsuit; so adjudication of the issue might be forthcoming.

In the meantime, watch efforts to enforce these local anti-discrimination laws and how those efforts are received not just in the affected communities but also statewide.

That might provide some clue as to how aggressively state lawmakers will defend this idea of limiting local decision-making on the issue.

Commentary on 07/29/2015

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