Attorneys for Fayetteville and Arkansas debated before the state Supreme Court on Thursday the future of the city's ordinance banning discrimination on the basis of sexual orientation or gender identity.
Justices questioned whether the ordinance -- passed by city voters in 2015 -- violates a 2015 state law that prevents cities and counties from passing anti-discrimination ordinances that extend protection to people who are homosexual, bisexual or transgender.
Specifically, the state law -- Act 137 -- prohibits cities and counties from passing laws that protect people from discrimination "on a basis not contained in state law." Justices also questioned whether they should rule on the constitutionality of the law as part of their opinion in the case.
City Attorney Kit Williams successfully argued in Washington County Circuit Court that the ordinance did not overstep state law because various state laws already protect individuals from discrimination based on sexual orientation and gender identity.
The state disagreed with that conclusion and appealed, asking the court to determine that the ordinance is not allowed under Act 137 and that Act 137 is constitutional. The lower court did not make a determination on the law's constitutionality.
"I would ask that this court would allow the people's decision to stand," Williams told the justices.
Arkansas Solicitor General Lee Rudofsky, who argued on behalf of the state, said the state has a legitimate interest in keeping anti-discrimination laws uniform for the sake of intrastate commerce to keep businesses from having "to deal with a varying patchwork of nondiscrimination ordinances."
Justice Shawn Womack challenged Williams' argument Thursday that various state laws -- covering bullying and domestic violence -- could be used to determine which populations of people are classes protected from discrimination. Womack asked Williams if a law prohibiting people from stealing property would make victims of theft a protected class.
Williams said he didn't think it would, arguing that other courts and the Legislature already have recognized homosexual, bisexual and transgender people as protected in court cases and in the creation of the anti-bullying law.
Rudofsky said the city's argument that various ordinances already include sexual orientation and gender identity as protected classes was a "strained interpretation" of the law. He said "so many more" protections could be added using the city's logic.
Justices Courtney Goodson and Rhonda Wood noted the city's argument that other state statutes already protect people based on sexual orientation and gender identity. Wood asked Rudofsky why the law did not specify classes protected in the federal Civil Rights Act if lawmakers intended to limit the protected classes.
Rudofsky said such language would have left out certain protections offered to members of the military and that the Civil Rights Act was not the only statute that could provide protections.
After Thursday's hearing, Rep. Bob Ballinger, R-Hindsville, who sponsored Act 137, said the city's argument "goes against common sense" and that he had a positive feeling about the outcome of the case.
Kyle Smith, president of the now-dissolved local ballot question committee For Fayetteville, said he hoped the court would side with the voters in Fayetteville who passed the ordinance.
"This has been a good experience for the community," he said. "I would hate to see that hard work go to waste."
Ballinger said Thursday that Act 137 was designed to provide uniformity in state anti-discrimination laws that would be easier for businesses to handle. He said decisions on which classes should be protected should be made by legislators.
Ballinger said he would be amenable to adding more protected classes if an argument could be made in favor of doing so in a way that did not infringe on an individual's religious liberty. Protections for people on the basis on sexual orientation can lead to people who oppose same-sex marriage being forced to provide services to same-sex couples, he said.
Thirty-one Arkansas businesses filed a "friend of the court" brief in support of the city's ordinance, Williams said in court Thursday.
Williams further argued that the court should not decide on the constitutionality of Act 137 because Washington County Circuit Judge Doug Martin did not decide on the act's constitutionality in his lower court ruling. He argued that the Supreme Court has a "long-standing" practice of not ruling on issues that weren't addressed in a lower court's decision.
Wood questioned the efficiency of sending the constitutionality issue back to the Circuit Court for a decision when the Supreme Court has already been fully briefed on the issue.
In August 2014, the Fayetteville City Council passed a nondiscrimination ordinance that included more protected classes and faced more opposition from local businesses. Voters repealed that ordinance in December 2014 by a vote of 7,527 to 7,047.
Ballinger sponsored a law in the 2015 legislative session to prevent such ordinances from being legal in the future by limiting protected classes to those already protected in state law. That bill passed and became law that summer.
In June 2015, the city adopted a second ordinance -- by a 6-2 vote -- that prohibits people and businesses from intentionally discriminating against someone who is homosexual, bisexual or transgender. It exempts churches, religious schools and day care facilities.
Voters approved the new ordinance, 7,698 to 6,884, in a special election Sept. 8, 2015.
For Fayetteville, a local ballot question committee formed by Fayetteville residents to pass the ordinance, celebrated the vote by issuing a news release stating, "With the passage of the Uniform Civil Rights Protection Ordinance 5781, Fayetteville has affirmed its place as one of Arkansas' most welcoming and business friendly communities."
Protect Fayetteville, a local ballot question committee that successfully campaigned to repeal the first anti-discrimination ordinance, sued the city after the vote, arguing that the ordinance violated Act 137. The state intervened in the case and in support of Protect Fayetteville's position.
A Section on 02/10/2017