A controversial Fayetteville ordinance is down but not out -- at least not yet.
The Arkansas Supreme Court ruled last week that a Fayetteville ordinance intended to protect people from discrimination based on sexual orientation and gender identity violates a 2015 state law.
The litigation is not over, however. The Supreme Court did not rule on whether that state law, Act 137 of 2015, is constitutional. The high court instead sent that issue back down to Washington County Circuit Court to decide.
Here we go again.
First, here's a little background:
Fayetteville voters directly approved the ordinance to protect gay, bisexual and transgender people from certain kinds of discrimination.
The City Council approved the ordinance in June 2015 and referred it to voters the following September. It passed with 53 percent of the vote.
The ordinance protects against eviction, firing, being turned away or otherwise discriminated against because of sexual orientation or gender identity. It includes an exemption for religious organizations.
Notably, an earlier effort (with fewer exemptions) failed to pass a public vote. But this one succeeded and has been the subject of litigation ever since.
It was precisely the kind of law a couple of state lawmakers intended to prohibit when they sponsored what became Act 137.
State Sen. Bart Hester, R-Cave Springs, and Rep. Bob Ballinger, R-Hindsville, were the driving force behind the state law.
They contended Arkansas needed uniform nondiscrimination policies statewide, not city by city, and maintained they sought the law in the interest of interstate commerce.
The Fayetteville ordinance "violates the plain wording of Act 137," the Supreme Court said last week. Fayetteville's ordinance extended anti-discrimination laws in the city to two classifications not previously included under state law.
The ruling upended the city's argument that there are other state laws that bar this kind of discrimination.
Washington County Circuit Judge Doug Martin had ruled in March 2016 that the city's ordinance did not violate the state law, which says local governments cannot bar discrimination "on a basis not contained in state law."
In the city's defense of the Fayetteville ordinance, City Attorney Kit Williams had cited other Arkansas laws (related to bullying, domestic violence and vital statistics) that he said protect people from discrimination based on sexual orientation and gender identity. Judge Martin upheld the city ordinance on the basis of that argument.
The Supreme Court had a different thought. The laws Williams cited, the court said, "are unrelated to nondiscrimination laws and obligations and do not create protected classifications or prohibit discrimination." The court relied on the Arkansas Civil Rights Act, which does not include the two classifications Williams argued are protected under other laws.
Williams acknowledged last week that what the court ruled on that issue stands.
But he said that he will argue again that Act 137 is unconstitutional, as he had in the initial proceeding.
Judge Martin didn't rule on its constitutionality then.
Neither did the Supreme Court last week, so that's the question that remains for the courts to decide.
Ultimately, Fayetteville may not end up with the law its citizens wanted. But the truth is, unless some recent complaints have been filed, there may not have been much need for the ordinance in Fayetteville.
By reputation and reality, Fayetteville is an accepting place. The city has not been swamped with complaints.
Past experiences brought a lot of people out to support the ordinance in 2015, when the issue was at its hottest here and in some other communities where such protections may be needed more.
Fayetteville has already shown -- just by passing and defending the ordinance -- that it welcomes and respects the people whose rights the city has tried to protect.
Commentary on 02/26/2017