FAYETTEVILLE -- The city's Uniform Civil Rights Protection ordinance will go into effect today after a Washington County circuit judge on Friday denied ordinance opponents' request to stay implementation of the law and prevent its enforcement while their lawsuit continues.
Circuit Judge Doug Martin ruled that the Protect Fayetteville ballot question committee and other ordinance opponents failed to show the law would cause irreparable harm to them if enforced and failed to show they had a "reasonable probability" of winning their lawsuit on its merits, two tests for issuing an injunction.
Fayetteville Civil Rights Commission
• When: 5:30 p.m. Monday
• Where: Room 111, City Administration Building, 113 W. Mountain St.
• On the agenda: Choosing a chairperson and determining which members get shortened terms in order to stagger the commission’s turnover.
Source: Fayetteville City Attorney’s Office
The broader lawsuit, attempting to get the civil-rights law tossed out completely, continues in Martin's court with another hearing set for next month.
"I think it's an excellent sign that Protect Fayetteville's complaint doesn't have any legal teeth to it," Danielle Weatherby, an assistant law professor at the University of Arkansas and member of the pro-ordinance For Fayetteville group, said of Friday's ruling. "It's hopefully an indication of what the court thinks of the merits of the complaint."
Duncan Campbell, Protect Fayetteville president, said the group was undeterred.
"We disagree with the court, obviously, and we're disappointed that they don't see how important our civil rights are," he said. "We will press on. We are persistent and determined."
The opponents first filed the lawsuit against the city and its officials before a Sept. 8 election on the ordinance, which will penalize businesses that fire, evict or turn away customers or employees based on sexual orientation or gender identity. Religious institutions and organizations are exempt. The ordinance passed with 53 percent of the vote.
The two sides sparred Friday morning over legal principles that are likely to come up again throughout the case and any appeals to higher courts that follow.
Travis Story, attorney for Protect Fayetteville, said the law intentionally "strips away" the freedoms of religion and conscience from Fayetteville residents who have religious objections to homosexuality or being transgender.
He also explained the reasoning behind the overarching lawsuit's claims, saying the law was improperly approved by the City Council to go to the voters and violates Arkansas Act 137. The act, passed earlier this year, says cities can't enact civil-rights protections "on a basis not contained in state law," and the state civil-rights law doesn't include sexual orientation or gender identity.
"We know that if somebody were to exercise their religious rights, they would be subject to this law," Story said of the Fayetteville ordinance, invoking the example of a bakery that would be penalized for refusing to bake a cake for a same-sex wedding reception. Protect Fayetteville represents thousands of voters who could be harmed, he said.
Fayetteville City Attorney Kit Williams disputed each of Story's points. The plaintiffs haven't testified they intend to discriminate against gay or transgender people and therefore can't prove they'd be harmed by the law, Williams said. State laws on bullying, domestic violence shelters and birth certificates for transgender people provide the needed "basis" for Fayetteville's ordinance, he added.
Williams also contended Act 137 can't be interpreted to prevent the ordinance without running afoul of the U.S. Supreme Court's 1996 Romer v. Evans decision, which declared unconstitutional an explicit Colorado ban on protections for lesbian, gay, bisexual and transgender people.
Act 137 doesn't explicitly ban those protections, and its proponents said it was economically focused to ensure businesses have to follow the same rules anywhere in the state. But Williams said Act 137 accomplishes the same thing as Colorado's law, albeit indirectly, which several courts have said is still unconstitutional.
He pointed to Attorney General Leslie Rutledge's opinion on Fayetteville's ordinance and others like it in the state that found such laws unenforceable under Act 137.
"'The common thread,' she said, is they all protect sexual orientation and gender identity," Williams said, quoting a phrase in the opinion. "We're not stupid here."
In his rebuttal, Story argued the Colorado and Arkansas laws are distinct. Arkansas' addresses a legal "hodgepodge" among the state's cities and still allows the state as a whole to put the civil-rights protections in place -- Colorado's didn't, he said.
"We have to see there are clear distinctions," Story said. "We believe Act 137 says what it means."
Story also argued the other state laws Fayetteville used as the basis for its ordinance are specific and narrow and can't apply in such a way.
Martin said he agreed with Story that Romer v. Evans provides "interesting issues" to explore.
"I don't think it's necessary to grant an injunction to do that," Martin continued.
After Martin's decision, he scheduled the next step: a hearing for Dec. 1 for Williams' motion to dismiss the lawsuit.
Friday's decision paves the way for the city's new, seven-member Civil Rights Commission to have its first organizational meeting Monday evening. Members will choose a chairman and draw for staggered, one- to three-year terms, Williams said.
The commission includes businessmen, renters, a lawyer and a volunteer with the campaign supporting the ordinance. The City Council approved its membership earlier this month.
Under the ordinance, complaints of discrimination go first to the city attorney's office for a private attempt to mediate the dispute. Complaints that can't be mediated then go to the commission within two weeks for a public hearing.
If the commission finds discrimination took place, the case goes to the city prosecutor, who can push for a fine of up to $100 for the first offense. Even then, a violation isn't considered a criminal misdemeanor or felony.
Dan Holtmeyer can be reached at [email protected] and on Twitter @NWADanH.
Metro on 11/07/2015