Between the lines: Supreme authority

Civil rights ordinance headed to High Court

Fayetteville's ban on discrimination based on sexual orientation and gender identity will get further court scrutiny.

That's no surprise. Considering the controversy over the ordinance's passage, this case was all but certain to reach the Arkansas Supreme Court.

Sure enough, Attorney General Leslie Rutledge last week asked the justices to reverse a lower court ruling that upheld the ordinance.

The ordinance was passed to protect gay, bisexual, and transgender people against eviction, firing, being turned away or otherwise discriminated against because of sexual orientation or gender identity. It includes an exemption for religious organizations.

Recently, Washington County Circuit Judge Doug Martin ruled the ordinance does not conflict with a state law intended to block such local laws.

The state law is Act 137, passed last year by the Legislature and sponsored by state Sen. Bart Hester, R-Cave Springs, and Rep. Bob Ballenger, R-Hindsville. The two lawmakers are already promising to amend the law, which says local governments can't bar discrimination "on a basis not contained in state law."

The language wasn't quite clear enough to accomplish their goal.

Fayetteville and other communities found existing state laws against bullying and affecting domestic violence shelters that do cover sexual orientation or gender identity. They relied on those laws as the basis for local nondiscrimination controls and, in Fayetteville's case, Judge Martin accepted the argument. He did not address a city argument that the state law is unconstitutional.

The attorney general obviously disagrees with Martin's ruling and is appealing.

We'll see how successfully Fayetteville City Attorney Kit Williams can defend the ordinance before the Supreme Court.

In the meantime, the ordinance was recently on public display in Fayetteville in the form of outrageous behavior by a city alderman.

Ward 4 Alderman John La Tour was involved in a widely publicized encounter with a barista at Arsaga's at the Depot. He reportedly asked the restaurant employee what her gender was and told her he could prove his own.

"I am a man and I can prove it," he said, according to his own account. He said at a recent ward meeting that his comment was misunderstood and distorted.

In that exchange with the barista, La Tour mentioned the city's nondiscrimination law and reportedly said it lets people choose their gender based on how they feel on any given day.

La Tour has since apologized to the barista and to the restaurant owner, but the incident spurred calls for La Tour's resignation from the City Council.

A petition drive has begun to recall La Tour. Elected in 2014, he is serving a four-year term and says he won't resign.

Petitioners will need to gather at least 3,289 valid signatures from Ward 4 voters to force a recall election.

In that Ward 4 meeting, one of the residents suggested La Tour's behavior was a national embarrassment.

So far, the local incident hasn't gotten that kind of notice, although the state of Arkansas continues to draw national attention for its effort to curb protections for gays, lesbians, bisexuals and transgender people.

Arkansas is cited among the few states that have voted to ban local anti-discrimination ordinances.

Tennessee did it first in 2011. Arkansas followed last year. And, most recently, North Carolina approved a law just last week that is being described by activists as the most extreme anti-LGBT law in the country.

The North Carolina law, unlike the other two, requires public schools and agencies to segregate bathrooms by the biological sex on a person's birth certificate. It also prohibits any city or county from creating new nondiscrimination laws.

An analysis of the three laws in the Washington Post suggests what they have in common is that they are engineered to test the limits of what the U.S. Constitution allows, particularly the 14th Amendment's promise of equal protection under the law.

A lawsuit has already been filed to challenge the constitutionality of the North Carolina law with the idea that the case might eventually advance to the U.S. Supreme Court.

That test is a long way off, if it happens.

For now, the fate of the Fayetteville ordinance and the conflicting Arkansas law are in the hands of the state Supreme Court.

But don't forget that the Arkansas Legislature could weigh in again, presumably next year, to amend Act 137 and change the arguments.

Commentary on 04/03/2016

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