The city of Fayetteville’s legal battle to keep its civil rights protections covering sexual orientation or gender identity is, at the moment, not about that at all.
It’s about state lawmakers and whether their representation “of the people” gives them their own form of protection, a shield against testifying in court about their motivations for introducing and advocating for legislation.
The state of Arkansas joined a lawsuit against its third-most populous city after Fayetteville’s voters in 2015 gave their backing to a municipal civil rights ordinance that created a civil rights commission as a mechanism to fight discrimination in housing, employment and services.
At its core, the legal fight is over providing local civil rights protections to people the Arkansas Legislature hasn’t deemed worthy of such protections.
In February 2015, Arkansas lawmakers passed Act 137, which prohibits local governments from protecting classes of people on “a basis not contained in state law.” That would, according to supporters of the law, exclude any city protections for people who are homosexual, bisexual, transgender — in a nutshell, people who aren’t classically heterosexual.
Act 137 came before Fayetteville’s civil rights ordinance, but not before the controversy over it. In fact, the Fayetteville City Council in 2014 adopted a civil rights ordinance without giving voters a say. After a sometimes nasty community clash, voters overturned the City Council’s actions. The state Legislature in early 2015 passed Act 137 as a pre-emptive strike to make sure cities provided no safe haven against discrimination if members of the Arkansas General Assembly didn’t see fit to agree.
Now, Fayetteville City Attorney Kit Williams faces the uphill battle to prove Act 137 is unconstitutional. By denying cities the right to fight discrimination, the city basically argues, Arkansas is not giving all its citizens equal protection under the law.
Williams, in defending his city’s ordinance, naturally wants to interview state lawmakers who advocated for Act 137, through depositions or on the stand in the courtroom. Attorney General Leslie Rutledge, however, is fighting that move.
Arkansas’ Constitution says members of the General Assembly shall “be privileged from arrest during their attendance at the sessions of their respective houses; and, in going to and returning from the same; and, for any speech or debate in either house, they shall not be questioned in any other place.”
What? Does being a state legislature give one extra privileges? Are they super-citizens, given extra protections under the law? Does Bart Hester of Cave Springs, the state senator who sponsored Act 137 or Rep. Bob Ballinger of Berryville, the House sponsor, get a pass on even basic questions as the city attempts to defend its ordinance from the state’s attack?
In a word, yes. Such measures go far back into American and English law. The principle, which applies also through the U.S. Constitution to members of Congress, is that legislative bodies can hardly function if, for example, a governor or president can simply arrest their members. To promote debate in the chambers of these deliberative bodies, lawmakers must be afforded protection against facing litigation for every word they say in the process.
Case closed? Not quite. Note the Constitution says “any speech or debate in either house.” So what about the words lawmakers say outside those chambers? The state appears to want the courts to give lawmakers almost total immunity from testimony about any law. Williams, however, is the one facing a challenge: To enter any lawmakers’ comments — either in the media, on websites or through social media, like Twitter — for the court’s consideration, he must authenticate them. How is that usually achieved? By putting the person quoted under oath so they can attest that what they were quoted as saying or what was published on their Twitter accounts is something they actually said.
And the only way to demonstrate whether the law violates equal protection standards is to show why the law was passed. How does one do that without introducing comments from lawmakers, the very people who passed the law?
“What the attorney general is saying is I can’t question them about things they said outside the House [or Senate],” Williams said.
Lest anyone think this is small potatoes, consider this: Attorneys for Texas, Alabama, Idaho, Indiana, Kansas, Louisiana, Michigan, Missouri, Oklahoma and Kentucky have asked to intervene in the case to support Rutledge’s contention that legislators should not be compelled to testify in court.
We’ve never seen politicians so scared of a judicial proceeding, except for maybe the ones involving examination of how the state’s General Improvement Fund allocations have been spent throughout the state.
This is an important matter. Lawmakers do, in furtherance of their duties, deserve some protection for what they utter in the House and Senate chambers. But does that amount to immunity from testifying in all cases, even to affirm their remarks online or in news coverage? We don’t think the authors of the U.S. or state constitutions intended to create a Monopoly-like “get out of testimony free” card for lawmakers.
Why would lawmakers be so fearful of explaining themselves and their public comments? They’re usually quite vocal on touting their beliefs or causes. Heck, they even campaign on them.
Maybe it’s that whole thing about testifying under oath?
Legislative privilege has been around for hundreds of years, but lawmakers ought not be able to skate by when their utterances outside the chambers are central to the question of whether the law they’ve created is or is not constitutional. Last we checked, Arkansas didn’t have a ruling class deserving of protection from all inquiries through litigation. Application of any immunity from testifying should be balanced against the very important question of whether a law violates constitutional protections of people the entire system is supposed to serve.
Let the testimony begin. If inappropriate questions are asked, the state can object and a judge can rule. But an across-the-board escape clause for lawmakers goes too far.
WHAT’S THE POINT?
Lawmakers should not get a pass on testifying when the state is trying to protect a law that may
be unconstitutional.