Eureka Springs can't enforce a citywide anti-discrimination ordinance it has had for two years, said state Rep. Bob Ballinger, a Republican who represents District 97, which includes Eureka Springs.
That's because the Arkansas Supreme Court ruled Thursday that a similar ordinance in Fayetteville violated Act 137 of 2015, said Ballinger, who sponsored legislation that became Act 137.
"We have a Supreme Court ruling that says what they have on their books is against state law," Ballinger said of Eureka Springs, which passed its anti-discrimination ordinance five months before Act 137 became law.
Fayetteville and Eureka Springs had the broadest anti-discrimination laws in the state. Besides city employees and vendors doing business with the city, the laws in Fayetteville and Eureka Springs protected people from discrimination because of "sexual orientation" and "gender identity" in areas of employment, housing and public accommodations throughout the cities.
"I am very disappointed," said Eureka Springs Mayor Robert "Butch" Berry. "We've got a Republican attorney general, and she vowed to fight it. I still don't think what they've done is constitutional because they're still discriminating."
When Act 137 went into effect July 22, 2015, Berry said the city would continue to enforce its nondiscrimination ordinance.
"If we get a valid complaint, we would certainly look at our ordinance and follow through with it," he said at the time.
The Supreme Court didn't consider the constitutionality of Act 137 because it had not been addressed by the Washington County Circuit Court, where the case originated, according to Thursday's ruling.
Judd Deere, a spokesman for Attorney General Leslie Rutledge, said the Supreme Court ruling also should affect Eureka Springs as well as cities and counties that passed anti-discrimination ordinances that weren't as broad.
"The logic of this ruling appears to apply to other similar local ordinances around the state, but that is something the attorney general is still reviewing," he said.
Mickey Schneider, a Eureka Springs alderman, said the city will enforce its anti-discrimination ordinance if a complaint is filed.
"If someone has an actual something happen .... we will go ahead and enforce our city law and, screw 'em, and they will have to come after us," Schneider said. "We dare 'em."
Schneider said she would like to take such a case all the way to the U.S. Supreme Court "and get discrimination anywhere in the country declared illegal."
Lamont Richie was less pugnacious than Schneider after he read the state Supreme Court ruling. He's a Carroll County justice of the peace who helped draft the Eureka Springs ordinance.
"The Supreme Court was very clear that these kinds of ordinances run afoul of 137," Richie said. "It's great to puff up your chest and say 'We're not going to do it,' but the law's the law. ... There was nothing ambiguous about the court's opinion."
Tim Weaver, the Eureka Springs city attorney, said he hadn't had a chance to read the Supreme Court ruling as of late Thursday afternoon.
"I still have no idea what their reasoning was because I haven't been able to get that far into it," he said.
Ballinger said the fact that the Eureka Springs City Council rushed Ordinance 2223 through five months before Act 137 isn't relevant.
"Even if it had been on the books for 20 years, they can't enforce it at this time," Ballinger said. "The reason why they hurried to [pass Ordinance 2223] is they wanted to create a constitutional argument that the city has extended some rights to people and the act would take those rights away. They were doing so with the intent to avoid a state law that was going into effect."
Richie said Eureka Springs and Fayetteville can continue to advertise themselves as cities that passed anti-discrimination ordinances that were upheld by the public in special elections -- in effect, saying "You are safe and welcome here."
"That's really all we can do," he said.
A Section on 02/24/2017
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