FAYETTEVILLE — The city's Uniform Civil Rights Protection ordinance will go into effect Saturday after a Washington County circuit judge Friday denied ordinance opponents' request to stay the ordinance and prevent its enforcement during the course of their lawsuit against it.
Circuit Judge Doug Martin ruled Protect Fayetteville and other ordinance opponents failed to show the law would cause irreparable harm to them if enforced and they had a "reasonable probability" of winning their lawsuit on its merits, two tests for issuing an injunction. The broader lawsuit trying to get the law tossed out completely continues in Martin's court with another hearing set for next month.
Opponents first filed the lawsuit before the Sept. 8 election on the ordinance, which would penalize businesses that decide to fire, evict or turn away customers or employees based on sexual orientation or gender identity. Religious institutions and organizations are exempt. The ordinance passed with 53 percent of the vote.
Travis Story, attorney for Protect Fayetteville, said the law intentionally "strips away" the freedoms of religion and conscience from Fayetteville residents who have religious objections to homosexuality or being transgender.
He also explained the reasoning behind the overarching lawsuit, which claims the law was improperly approved and sent to voters and violates Arkansas Act 137. The act passed earlier this year and states cities can't enact civil rights protections "on a basis not contained in state law."
"We know that if somebody were to exercise their religious rights, they would be subject to this law," Story said, invoking the example of a bakery that would be penalized for refusing to bake a cake for a same-sex marriage ceremony.
Fayetteville City Attorney Kit Williams disputed each of Story's points. The plaintiffs haven't testified they intend to discriminate against gay or transgender people and so can't prove they'd be harmed by the law, Williams said. State laws on bullying, domestic violence shelters and birth certificates for transgender people provide the needed "basis" for Fayetteville's ordinance, he said.
Williams also contended Act 137 can't be interpreted to prevent the ordinance without violating the U.S. Supreme Court's 1996 Romer v. Evans decision, which declared states couldn't explicitly ban protections for lesbian, gay, bisexual and transgender people.