FAYETTEVILLE -- A Washington County circuit judge said this week that he will rule on whether a state law allows Fayetteville's civil-rights ordinance.
The lawsuit to throw out the ordinance continued Tuesday with a hearing on the city attorney's motion for a summary judgment. Judge Doug Martin could grant the motion or let the case continue to a trial.
After about 31/2 hours of back-and-forth discussion between the city attorney, ordinance opponents and an Arkansas assistant attorney general, Martin said he would rule on the motion as soon as possible.
Much of the argument focused on Act 137, the 2015 state law saying cities and counties can't enact protections from discrimination "on a basis not contained in state law." Fayetteville voters approved an ordinance last fall protecting people from being evicted, fired, turned away or otherwise discriminated against because of their sexual orientation or gender identity -- characteristics that aren't covered by the state's civil-rights law.
The sides on Tuesday dug in on their established positions. The ordinance's opponents and the attorney general's office say Act 137 clearly makes Fayetteville's ordinance meaningless, while City Attorney Kit Williams argued that the state law must allow Fayetteville's protections or, if it doesn't, should be declared unconstitutional.
"I hear two, what I consider reasonable but very different, interpretations of Act 137," Martin said at the end of the hearing.
Besides the state law issue, the lawsuit says the ordinance violates freedom of conscience and that the City Council improperly approved it and sent it to voters, allegations that the city disputes.
Attorney General Leslie Rutledge became a party in the case last year because of the constitutional challenge to a state law. She and Williams have sparred over the question in a series of briefs for the past two months.
Williams repeated his contention that protections for gender identity and sexual orientation are embedded in state laws on bullying and domestic violence, and therefore the ordinance clears the Act 137 test of not creating new protected classes.
"There's simply no rational way for the state to argue that 'sexual preference' or 'sexual orientation' are not in state law," Williams said.
If Act 137, as it stands, still won't allow the ordinance, then it should be struck down, Williams said. He again pointed to the U.S. Supreme Court's 1996 Romer v. Evans decision, which declared a Colorado amendment outlawing protections for lesbian, gay, bisexual and transgender people violated the U.S. Constitution and said states need more reason for such laws than general dislike for a particular group.
Act 137 doesn't explicitly target a particular group, unlike Colorado's law, but Williams said the intent of both was the same. He cited the public statements by the act's supporters and the act's timing during Fayetteville's debate over its ordinance.
"I believe that every legislator, every LGBT person in Arkansas and every person who wanted to keep the right to discriminate against LGBT people intact knew the purpose of Act 137," Williams said, using the initials for lesbian, gay, bisexual and transgender people. "The veil of facial neutrality in Act 137 has been torn down."
Assistant Attorney General Colin Jorgensen argued that Act 137 is constitutional and constitutionally prohibits laws such as Fayetteville's. The act's stated purpose was to keep discrimination laws uniform across the state so businesses could more easily conform to the law, he said.
"It cannot be honestly disputed that uniformity of law is a legitimate state interest," Jorgensen said.
Act 137 allows the state civil-rights law to change, Jorgensen said; it just has to be done at the state level. Another law passed last year "held the field" for state lawmakers in the same way, but for regulations on Uber and similar ride-sharing companies instead of civil-rights laws.
Some federal court decisions have brought gender identity and sexual orientation under the umbrella of gender, which is protected from discrimination throughout the country. But Jorgensen criticized this grouping and said the U.S. Supreme Court hasn't definitively ruled on whether orientation and identity warrant the same protection.
Finally, Jorgensen said it's impossible to prove Act 137 was passed to target gay and transgender people.
"The local [Fayetteville] debate provided a specific example to the legislator of a general concern," he said. "Act 137 burdens no fundamental right."
Metro on 01/28/2016