AG opinion suggests proposed Fayetteville ordinance ‘unenforceable’

Arkansas Attorney General Leslie Rutledge issued an opinion Tuesday (Sept. 1) that could impact a Sept. 8 vote in Fayetteville on an ordinance that would include civil rights protections based on gender identity and sexual orientation.

Those for the ordinance questioned Rutledge’s timing with the opinion, and Fayetteville City Attorney Kit Williams believes Rutledge’s opinion goes against federal case law.

The Uniform Civil Rights Act – aka, Ordinance 5781 – goes to voters Sept. 8, and was pushed by Alderwoman Adella Gray after the original Ordinance 119 went down in defeat in 2014 when 51.6% of voters rejected it. The goal was to address the issues that led to the defeat of Ordinance 119, especially the confusing language. 

Specifically, the ordinance provides legal protections “for persons on the basis of gender identity and sexual orientation should also be protected by the City of Fayetteville to prohibit those isolated but improper circumstances when some person or business might intentionally discriminate against our gay, lesbian, bisexual and transgender citizens …” (Link here for a copy of the ordinance, and link here for more information on both sides of the issue.)

ACT 137
Rep. Bob Ballinger, R-Hindsville, had asked AG Rutledge for an opinion on how Act 137 – a state law he and Sen. Bart Hester, R-Cave Springs, successfully pushed through the recent Arkansas General Assembly – deals with local government efforts in Eureka Springs, Fayetteville, Hot Springs and Little Rock to provide civil protections based on gender identity and sexual orientation.

The primary language in Act 137, known as the “Intrastate Commerce Improvement Act,” finds: “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.”

Rutledge, a Republican, ruled that Act 137 results in local government actions related to civil rights protections expanded beyond state law being “unenforceable.”

“Act 137 renders unenforceable any ordinance that prohibits discrimination on a basis not already contained in state law. Because current state law does not prohibit discrimination on the basis of sexual orientation or gender identity, it is my opinion that Act 137 renders the five ordinances unenforceable in this respect,” she noted. (Link here for a copy of the opinion.)

The effort to create Act 137 was controversial, with national business and political groups getting involved in the debate. Bentonville-based Wal-Mart Stores encouraged lawmakers to oppose the legislation, and Gov. Asa Hutchinson (R) allowed the legislation to become law without his signature.

‘POLITICALLY MOTIVATED’ TIMING
Danielle Weatherby, an executive committee member with For Fayetteville, the group pushing for voter approval of Fayetteville Ordinance 5781, told The City Wire she is “a little dubious” about the timing of Rutledge’s opinion and said the AG’s opinion carries no legal weight.

In a statement issued later by For Fayetteville, Weatherby said: “Many attorneys in Arkansas have reached a different opinion on Act 137.” Continuing in the statement, Weatherby again was critical of Rutledge’s timing.

“The timing of this opinion on the first day of early voting is suspicious and possibly politically motivated. It may be yet another maneuver to mislead voters and influence the outcome of the Sept. 8 election,” said Weatherby, who also is an assistant law professor at the University of Arkansas.

The other maneuver was an Aug. 31 filing by Protect Fayetteville, the group opposing Ordinance 5781, that seeks a restraining order to halt the election. The filing by the Story Law Firm said the city council did not follow city rules when placing the item on the ballot and alleges that the ballot title is misleading. The suit asks the court to order the Washington County Election Commission to remove the ordinance from the ballot.

That lawsuit faces a Friday morning (Sept. 4) hearing before Washington County Circuit Court Judge Doug Martin.

Williams, city attorney for Fayetteville, not only questions the timing of Rutledge’s opinion, but questioned the timing of the lawsuit filed in Washington County seeking to stop the election. He told The City Wire that the “facts were known for months” prior to the lawsuit being filed soon after early voting began. As to Rutledge’s opinion, Williams said his opinion is that her interpretation of Act 137 is “directly contrary” to case law and violates equal protection rights afforded by the U.S. Constitution.