FAYETTEVILLE -- Arkansas Attorney General Leslie Rutledge filed a motion Monday to intervene on behalf of the state in a lawsuit over the city's civil-rights ordinance, citing possible constitutional issues related to the case.
"Intervention of right by the state is appropriate in this matter because a party has challenged the constitutionality of Arkansas Act 137 of 2015, the Arkansas Intrastate Commerce Improvement Act," according to the motion, filed in Washington County Circuit Court.
Opponents of the ordinance contend it was improperly approved by the City Council to go to the voters and violates Arkansas Act 137. The act, passed earlier this year, says cities can't enact civil rights protections "on a basis not contained in state law," and the state civil-rights law doesn't include sexual orientation or gender identity.
Rutledge's office issued an opinion on Fayetteville's ordinance and others like it in the state earlier this year that said such laws appear unenforceable under Act 137.
Fayetteville City Attorney Kit Williams has contended Act 137 cannot be interpreted to prevent the city's ordinance without running afoul of the U.S. Supreme Court's 1996 Romer v. Evans decision, which declared unconstitutional a Colorado ban on protections for homosexual, bisexual and transgender people.
Fayetteville filed a response late Monday saying there is no objection to the state intervening based on assurances from Colin Jorgensen, assistant attorney general, that the state will not seek to delay a scheduled Dec. 1 hearing on the city's motions to dismiss the lawsuit. The state is expected to file any motions, responses or briefs that may be required by Friday at the latest.
The city's Uniform Civil Rights Protection ordinance went into effect Nov. 6 after Circuit Judge Doug Martin denied ordinance opponents' request to delay implementation of the law and prevent its enforcement while their lawsuit goes through the court system.
Martin ruled the Protect Fayetteville ballot question committee and other ordinance opponents failed to show the law would cause irreparable harm to them if enforced and failed to show they had a "reasonable probability" of winning their lawsuit on its merits, two tests for issuing an injunction.
The broader lawsuit attempting to get the civil rights law tossed out completely is continuing in Martin's court.
Protect Fayetteville first sued the city and its officials 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.
Opponents also contend the law intentionally "strips away" the freedoms of religion and conscience from residents who have religious objections to homosexuality or transgender.
Metro on 11/24/2015