Lesbian, gay, bisexual and transgender Arkansans don't need special civil rights protections, according to the Arkansas legislature and governor. Act 137 of 2015 bars cities and counties from passing ordinances that "create protected classification or prohibits discrimination" on anyone not covered by the state's existing civil rights codes.
Arkansas's Civil Rights Act bans discrimination on the basis of race, religion and other classifications — but not sexual orientation or gender identity. And because several state anti-bullying and domestic violence statutes offer LGBTQ Arkansans protection, opponents say local codes are redundant — codes such as Fayetteville's Ordinance 5781 that prohibits discrimination based on sexual orientation or gender identity.
State Act 137 also ensures that “businesses, organizations and employers doing business in the state are subject to uniform nondiscrimination laws and obligations.”
But Act 137 has come under judicial scrutiny.
State Sen. Bart Hester (R-Cave Springs) sponsored Act 137. The rational for the bill was to protect commercial business interests, he says.
“I had a lot of businesses come to me and say they are concerned that we can be accused and therefore we are de facto guilty of a civil rights action.”
Hester is referring to businesses who refuse to accommodate LGBTQ Arkansans in housing, employment or service due to religious objections.
According to the Human Rights Campaign, 38 states last year filed 250 bills the effectively roll back the rights of LGBTQ individuals and families. Only five became law.
Civil rights advocates frame it as pushback to Obergefell v Hodges, the 2015 Supreme Court decision that rendered same-sex marriage legal.
So in the summer of 2015, the Fayetteville City Council approved a nondiscrimination code, Ordinance 5781, which voters later ratified. The code explicitly exempts churches as well as religious institutions.
Opponents who fought against passage of Fayetteville’s civil rights ordinance sued the city in Washington County Circuit Court. In March of 2016, Judge Doug Martin ruled against the plaintiffs, upholding the ordinance. The matter was appealed to the Arkansas Supreme Court which last February decided against the lower court; specifically, that the ordinance is barred by state Act 137. The Court however, sent the case back to Circuit Court to decide if Act 137 is constitutional.
Hester says no one from his district has ever come forward with a civil rights complaints.
Fayetteville Attorney Kit Williams, on the other hand, says many LGBTQ residents testified on the record during the drafting of the ordinance that they'd been ostracized at work, on the job and in public spaces.
“And so there are some really well-documented incidents that had occurred in Fayetteville, and I was sorry to hear that that kind of discriminatory behavior in fact had happened.”
Since the ordinance's passage, Williams says he’s gotten a few complaints but none worthy of a hearing before the city’s new Civil Rights Commission. In other words, no business or organization has yet been fined the $100 maximum for breaking the ordinance.
Williams believes the ordinance, which remains in place pending the Circuit Court decision, appears to be working.
Plaintiffs in the Act 137 case before the circuit court are Protect Fayetteville, a group of citizens who oppose the ordinance. Arkansas Attorney General Leslie Rutledge is intervening on the state’s behalf.
Defendants are the city of Fayetteville, including Mayor Lionel Jordan, and members of city council, represented by Kit Williams.
In May, Martin, the judge, granted the American Civil Liberties Union of Arkansas a request to intervene on behalf of PFLAG— Parents and Friends of Lesbians and Gays — as well as one gay and two transgender residents.
Holly Dickson, ACLU Arkansas’s legal director, says defendants seek a declaration that Act 137 violates their civil rights.
“As residents of Fayetteville they receive direct protections from the ordinance. So they stand to be harmed if this state law is allowed to eradicate the protections they worked so hard to get into place.”
Nearly 20 states and the District of Columbia along with 200 municipalities have anti-discrimination laws and ordinances accommodating LGBTQ residents according to ACLU. And Dickson says plaintiffs’ argument that myriad municipal civil rights ordinances harm businesses in Arkansas due to a lack of uniformity is not rational.
“We have a myriad of laws that apply to business practice, and they vary from city to city and county to county, whether it be sales tax, property tax, zoning building codes, business licenses, alcohol sales restrictions, [or] proceeds from sales taxes.”
As such, opponents of Act 137 say it only seeks to deny protections to LGBTQ residents.
Hester, the senator, takes exception to that.
“Just because I don’t personally believe the way other people believe, that should not be a hostile scenario. We just disagree. I want an individual to be able to practice his religion outside a church, in his business, at his home, to practice his religious objections at anytime.”
The Story Law Firm in Fayetteville is representing the plaintiffs who will argue Act 137 is constitutional.
Assisting Holly Dickson are colleagues at the ACLU’s LGBT Rights Project as well as the Sullivan and Cromwell law firm in New York.
Martin has set a September deadline for both sides to collect and exchange information about the case and file briefs. Dickson says its not clear if this will be a bench or jury trial.
The case could be appealed all the way to the U.S. Supreme Court.
This story is produced by Arkansas Public Media, a statewide journalism collaboration among public media organizations. Arkansas Public Media reporting is funded in part through a grant from the Corporation for Public Broadcasting, with the support of partner stations KUAR, KUAF, KASU and KTXK and from members of the public. You can learn more and support Arkansas Public Media’s reporting at arkansaspublicmedia.org. Arkansas Public Media is Natural State news with context.