Fayetteville has been a hotbed of LGBT rights advocacy, but on February 23 the Arkansas Supreme Court, reversing a ruling by Washington County Circuit Court Judge Doug Martin, found that the city and its voters had violated state law by adding “sexual orientation” and “gender identity” to their antidiscrimination ordinance. Protect Fayetteville & State of Arkansas v. City of Fayetteville, 2017 Ark. 49. Justice Josephine Linker Hart wrote the opinion for the unanimous court.
Responding to earlier attempts to enact LGBT rights protections in Fayetteville, the Arkansas legislature passed Act 137 in 2015. Titled the Intrastate Commerce Improvement Act, Ark. Code Ann. Sec. 14-1-401 to 403, the measure was intended, according to its purpose section, “to improve intrastate commerce by ensuring that businesses, organizations, and employers doing business in the state are subject to uniform nondiscrimination laws and obligations, regardless of the counties, municipalities, or other political subdivisions in which the businesses, organizations, and employers are located or engage in business or commercial activities.” To that end, the measure bars local governments from adopting or enforcing “an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.” The Act recognizes one exception: local governments are left free to legislate on their own employment policies. Thus, a city can adopt an ordinance banning discrimination in its own workforce on grounds “not contained in state law.”
Arkansas, in common with the entire southeastern United States, does not forbid sexual orientation or gender identity discrimination in its state antidiscrimination statute. The clear intent of the legislators was to preempt local governments from adding those two characteristics to their local antidiscrimination ordinances. Or at least that’s what the court held in this decision.
Local LGBT rights advocates and city officials took a different view, however, seizing upon the literal meaning of “not contained in state law” and finding that Arkansas laws existed mentioning sexual orientation or gender identity. For example, an anti-bullying law protects public school students and employees from bullying because of gender identity or sexual orientation, among a list of 13 characteristics. There is also a provision in the state’s domestic violence law requiring domestic violence shelters to adopt nondiscrimination policies that include “sexual preference.” And the state’s vital statistics act provides a mechanism for an individual to get a new birth certificate after sex reassignment surgery. Taken together, the advocates argued that “sexual orientation” and “gender identity” are classifications that exist in Arkansas law, their inclusion in the city’s anti-discrimination ordinance would not be prohibited by Act 137.
The city council approved a new ordinance, Ordinance 5781, to add those categories to the local law, subject to an affirmative referendum vote. Opponents of the measure (plaintiffs in this case) tried to get the local court to stall the referendum while they contested the legality of the proposed ordinance, but the local court refused and the public voted to approve the measure. Ultimately, Judge Martin agreed with the argument that “sexual orientation” and “gender identity” could be added to the local ordinance, as they were categories that were mentioned in state law.
The Supreme Court’s reversal was premised on legislative intent. “In this case,” wrote Justice Hart, “the General Assembly expressly stated the intent.” The operative language could not be construed in isolation from the prefatory provision explaining why the legislature had adopted Act 137. They wanted nondiscrimination laws to be uniform through the state, and did not want localities to outlaw discrimination based on classifications that were not included in the state’s own antidiscrimination law. “The express purpose of Act 137 is to subject entities to ‘uniform nondiscrimination laws and obligations,’” wrote Justice Hart. She also noted that the Fayetteville ordinance, in a provision explaining the city council’s purpose, stated that “its purpose is to ‘extend’ discrimination to include ‘sexual orientation and gender identity.” Explained Justice Hart, “In essence, Ordinance 5781 is a municipal decision to expand the provisions of the Arkansas Civil Rights Act to include persons of a particular sexual orientation and gender identity.” She’s incorrect, of course, as to this statement, since by its plain meaning the ordinance would protect anybody from discrimination because of their sexual orientation or gender identity, including “straight” and “cisgender” people.
“This violates the plain wording of Act 137 by extending discrimination laws in the City of Fayetteville to include two classifications not previously included under state law,” wrote Hart. “This necessarily creates a nonuniform nondiscrimination law and obligation in the City of Fayetteville that does not exist under state law. It is clear from the statutory language and the Ordinance’s language that there is a direct inconsistency between state and municipal law and that the Ordinance is an obstacle to the objectives and purposes set forth in the General Assembly’s Act and therefore it cannot stand.” She noted that the statutes relied upon by the city and Judge Martin to argue that these categories were covered in state law were not antidiscrimination statutes, and thus could not be relied upon as a basis for adding them to the local antidiscrimination ordinance.
As a co-plaintiff in the case the State had intervened to protect the constitutionality of Act 137, which had been questioned by the city, but that issue had not been addressed by the circuit court, and the Supreme Court held it thus had not been preserved for appeal. The case was reversed and remanded. On remand, the city could pursue the question of the constitutionality of Act 137. It is strikingly similar, despite its euphemistic wording, to Colorado Amendment 2, which was declared unconstitutional under the 14th Amendment by the Supreme Court in Romer v. Evans (1996). Amendment 2 prohibited the state or any political subdivision from prohibiting discrimination because of sexual orientation. The Supreme Court, focusing on the legislative history of the measure, condemned it as intended to make gay people unequal to everybody else in the state out of moral disapproval. The state had advanced a desire for uniformity of state laws as one of many justifications for Amendment 2, but Justice Anthony Kennedy, writing for the Court, did not specifically reject any of the state’s justifications, merely stating that none of them were sufficient to justify the law, which did not even clear rational basis scrutiny.