By: Ashleigh Creed
The views expressed in this post are those of the author, and do not necessarily reflect the opinions of the Journal, the William H. Bowen School of Law, or UA Little Rock.
On June 16, 2015, the Fayetteville City Council passed Ordinance 5781 which established a discrimination offense for instances or circumstances in which a business or person intentionally discriminates against gay, lesbian, bisexual and transgender citizens. To that end, Ordinance 5781 provided that:
The right of an otherwise qualified person to be free from discrimination because of sexual orientation and gender identity is the same right of every citizen to be free from discrimination because of race, religion, national origin, gender and disability as recognized and protected by the Arkansas Civil Rights Act of 1993.
Essentially, the Ordinance’s purpose was to extend discrimination protections to include sexual orientation and gender identity. The Ordinance defined “gender identity” as “an individual’s own, bona fide sense of being male or female, and the related external characteristics and behaviors that are socially defined as either masculine or feminine” and defined “sexual orientation” as “heterosexuality, homosexuality or bisexuality by practice, identity or expression.” To bring Ordinance 5781 to fruition, the Fayetteville City Council held a special election on September 8, 2015 for voters to either enact or reject it. The Ordinance provided that, if approved by the voters, the Ordinance would become a part of the Fayetteville Code, effective sixty (60) days after the vote. On August 31, 2015, opponents of the Ordinance filed for an emergency temporary restraining order (TRO) that would have prohibited the special election. However, ultimately, the Circuit Court denied the motion, and voters approved Ordinance 5781 on September 8, 2015.
Following the enactment of Ordinance 5781, several interested persons referred to as “Protect Fayetteville” (Plaintiff-Appellant) and the State of Arkansas (Intervenor-Appellant) filed a complaint seeking a declaration that the Ordinance violated Act 137 of 2015– The Intrastate Commerce Improvement Act – by extending discrimination laws in the City of Fayetteville to include two classifications not previously included under state law (gender identity and sexual orientation). Act 137, in pertinent part, provides:
(a) A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.
Protect Fayetteville and the State of Arkansas argued that the only protected classifications to be considered are those set out in the Arkansas Civil Rights Act – which makes no mention of gender identity and sexual orientation. In response, the City of Fayetteville argued that Act 137 did not state that Arkansas municipalities were prohibited from creating a protected classification on a basis not contained in the Arkansas Civil Rights Act, but instead that municipalities were prohibited from creating a protected classification “on a basis not contained in state law.” The City of Fayetteville also argued that, because other Arkansas state statutes had already created and referred to a protected classification for both sexual orientation and gender identity – citing to the Anti-Bullying Statute, the Arkansas Domestic Peace Act, and the Vital Statistics Act – the Ordinance did not unlawfully create any protected classifications. Following a hearing, the Circuit Court agreed with the City’s reasoning and concluded that the classifications of gender identity and sexual orientation were classifications of persons protected on bases contained in state law. Consequently, the Circuit Court held that Fayetteville’s Ordinance 5781 was not in violation of Act 137.
Protect Fayetteville and the State of Arkansas then appealed the Circuit Court’s ruling directly to the Arkansas Supreme Court, arguing again that, by adding sexual orientation and gender identity to the list of protected classifications under the Arkansas Civil Rights Act, the Ordinance created two new protected classifications in violation of Act 137. The appellants argued, further, that the purpose of Act 137 was to advance uniformity and that, therefore, the General Assembly precluded municipalities from adopting or enforcing an ordinance that created new protected classifications; that determinations of protected classes and application of such discrimination laws to groups were to be made at the state level and enforceable statewide in order to avoid a patchwork of different local rules and standards. In opposition, the appellees maintained that classifications of gender identity and sexual orientation were, in fact, classifications of persons protected on bases already contained under Arkansas state law.
The Arkansas Supreme Court reversed and remanded the Circuit Court’s ruling, holding that:
Ordinance 5781 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 – gender identity and sexual orientation. This necessarily creates a non- uniform 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.
The Arkansas Supreme Court was unpersuaded by appellees’ arguments and instead concluded that the statutes cited by the Circuit Court and relied on by appellees were unrelated to nondiscrimination laws and obligations and that they, therefore, did not create protected classifications or prohibit discrimination on bases already contained under Arkansas state law.
At the time the Arkansas Supreme Court remanded the case back to the Circuit Court, the only claim still before the Circuit Court was appellant’s request to enjoin enforcement of Ordinance 5781 – that claim resolved by the Arkansas Supreme Court’s holding that Act 137 had constitutional supremacy over the Fayetteville Ordinance, thereby rendering the Ordinance void and unenforceable. However, on remand, the Circuit Court permitted another party to intervene, PFLAG of Northwest Arkansas, and raise a new claim regarding the constitutionality of Act 137. The Circuit Court then denied the appellant’s request for an injunction and the appellants appealed again.
On January 31, 2018, when taking up the second appeal, the Arkansas Supreme Court reversed the Circuit Court’s decision and dismissed the matter in its entirety, stating that the Circuit Court’s jurisdiction on remand was limited to carrying out its mandate by issuing an order consistent with the Court’s decision. Specifically, the Court held that:
Because the circuit court exceeded its jurisdiction on remand, its actions following remand are void. The order denying the preliminary injunction is reversed, and, because the sole issue over which the circuit court properly had jurisdiction was conclusively decided by this court in our 2017 opinion, the matter is dismissed in its entirety.
The Arkansas Supreme Court’s decision was unanimous.
Following the Court’s decision on January 31, 2019, Fayetteville City Attorney Kit Williams said he would likely ask the Court to reconsider its decision, and that the City’s argument that the law (Act 137) is unconstitutional, remains undecided – which is the best news moving forward. Further reassurances that the fight for equality is not over came from Holly Dickson of the ACLU who commented:
We are currently reviewing these decisions and determining our next steps in defending the rights of LGBTQ Arkansas. Importantly, no court has yet decided whether Act 137 was unconstitutionally passed to discriminate against LGBTQ residents, a claim that we will continue to pursue.
Reports have surfaced over the past few days that the City of Fayetteville and a known LGBT rights advocate group, “Parents, Families and Friends of Lesbians and Gays,” have asked the Court this past Friday to reconsider its decision to overturn the Circuit Court’s ruling that the City of Fayetteville could continue to enforce Ordinance 5781 while the City challenged the constitutionality of Act 137. Leslie Rutledge has commented that she is “reviewing the petition and would take appropriate action.”
Ordinance 5781 was a citizen-passed ordinance to support our LGBTQ friends, family and neighbors – people who, as it currently stands, enjoy no protection under state civil rights law. If uniformity is truly the concern, I would encourage the Arkansas General Assembly to take up the issue and Arkansans to rise to the occasion. Until then, I look forward to seeing the unconstitutionality of Act 137 brought directly to the Arkansas Supreme Court’s attention.