Cities Versus State: Arkansas Isn’t Sure if it Allows Anti-LGBTQ Discrimination
Arkansas’ liberal cities want to enforce pro-LGBTQ non-discrimination ordinances, but the state’s Supreme Court stopped them. Now, confusion reigns over LGBTQ rights in Arkansas.
A recent ruling from the Arkansas Supreme Court could put the rights and protections of thousands of LGBTQ people at risk.
Last week, the Arkansas Supreme Court overturned a lower court ruling that allowed Fayetteville to enforce its nondiscrimination ordinance, while it challenges a 2015 law designed to void pro-LGBTQ protections.
Act 137, known as the Intrastate Commerce Improvement Act, says cities and counties cannot designate protected classes not covered by statewide anti-discrimination law (which does not include LGBTQ identity).
But in a unanimous verdict issued on Jan. 31, justices with the Arkansas Supreme Court claimed any lingering debate over Fayetteville’s nondiscrimination ordinance is moot following its 2017 ruling. Two years ago, the state’s highest bench held that the ordinance “violates the plain wording” of Act 137 and struck it down.
Opponents of the statewide preemption bill, however, say the Arkansas Supreme Court dismissed the case without weighing in on the most critical question raised: whether Act 137 was constitutional to begin with.
Those issues were not discussed in the 2017 ruling.
Danielle Weatherby, a legal analyst and advisor for the pro-ordinance group For Fayetteville, said she continues “to have serious equal protection concerns about Act 137.” The Equal Protection Clause of the 14th Amendment guarantees all citizens “equal protection of the law” and is often interpreted as safeguarding LGBTQ rights.
“I'm disappointed that the constitutional questions that I believe lie at the heart of this case were not resolved,” Weatherby told The Daily Beast in a phone interview. “They remain unanswered.”
Plaintiffs were given 18 days after the ruling to file for rehearing.
When The Daily Beast reached out to Fayetteville City Attorney Kit Williams on Monday, Williams confirmed plans to request the court reconsider the case on constitutional grounds.
Every legal authority contacted by The Daily Beast admitted to being “surprised" and even “confused” by the Arkansas Supreme Court’s verdict. One of the most confounding aspects, say those with knowledge of Arkansas' legal codes, is that municipalities are unsure whether they can continue to enforce their nondiscrimination ordinances as the motion for rehearing moves forward.
According to Williams, everything is “up in the air” until the Arkansas Supreme Court responds.
“If they don't allow a rehearing, then at that point we're not going to be able to enforce the ordinance,” he said. “If we actually get someone that is making a claim under the ordinance [before then], I'll have to look at it very carefully and see whether or not we can do an enforcement action.”
Things get even murkier when it comes to pro-LGBTQ ordinances passed in other cities.
The Eureka Springs City Council was among the first in Arkansas to enact a nondiscrimination ordinance in February 2015. After the passage of Act 137 threatened those protections, the town’s 2,000 residents voted overwhelmingly to keep Ordinance 2223 on the books: 71 percent to 29 percent.
Ordinance 2223 was popular enough that turnout in an otherwise mundane special election actually exceeded the previous year’s midterms.
Officials are reportedly unsure as to whether Eureka Springs’ ordinance is affected by the Arkansas Supreme Court decision. Because the tiny tourist town didn’t have the money to challenge Act 137, Fayetteville’s measure was the only one mentioned in last week’s ruling. No other ordinance was discussed.
Jay Wilks, organizer of the tourism group Out in Eureka, said the verdict was “heartbreaking” for the gay enclave. An estimated 35 percent of residents are LGBTQ.
“The reaction here has been total outrage—that this happened in this day and age,” Wilks told The Daily Beast in a phone conversation. “These communities and these individuals fought so hard to have these ordinances passed for the protection of their community.”
“It may not stand within the state law, but in Eureka Springs, it stands,” Wilks added.
In total, at least six other cities and counties in Arkansas have some form of protection in place for LGBTQ residents: Conway, Hot Springs, Little Rock, Marvell, North Little Rock, and Pulaski County (which is home to Little Rock).
Like Eureka Springs, these municipalities were offered little clarity as to how they stand to be impacted by the Arkansas Supreme Court case.
The Little Rock City Attorney’s office did not respond to a request for comment prior to publication time. However, City Attorney Tom Carpenter previously told the Arkansas Times its ordinance “does not violate Arkansas law… because every prohibition against discrimination named is already named somewhere in state law.”
The law Carpenter is referring to is a 2012 anti-bullying bill passed by the Arkansas General Assembly. The legislation forbids “intimidation, harassment, or harm” on the basis of LGBTQ identity in schools, as well as other protected characteristics.
Laura Phillips, who sits on For Fayetteville’s executive committee, claimed the law is “one of the strongest anti-bullying bills in the nation.”
“When you look at it, there already is a state law that offers protection for students on the basis of real or perceived sexual orientation or gender identity,” she told The Daily Beast over the phone. “There's already something there.”
What also helps Carpenter’s case is that Little Rock’s ordinance has a much narrower scope than other provisions. The Arkansas capital city’s protections only apply to city employees and contractors who do business with the municipal government, whereas the measures enacted in Fayetteville and Eureka Springs apply to everyone.
According to Williams, Little Rock believes “believes [it] can still enforce” its ordinance.
“They're in a situation where it’d be extremely difficult for someone to get standing to challenge their ordinance,” he said. “It'd have to be a contractor doing business with them who has refused to comply with their ordinance saying that contractors not supposed to discriminate.”
Many of the questions surrounding enforceability will be answered after Feb. 18, when the deadline to file for rehearing ends. Even then, it could be weeks before the Arkansas Supreme Court responds.
But should justices decline to weigh in on Fayetteville’s ordinance for the third time, it has profound implications for the estimated 79,000 people in Arkansas who identify as LGBTQ. According to the UCLA-based think tank The Williams Institute, that’s 2.6 percent of the state’s population.
For instance, Arkansas has some of the nation’s most draconian housing laws. It’s an at-will state. So if a landlord decides to evict the lesbian couple on the second floor just because, he can do so with little justification.
In addition, there are scarcely few medical providers in the state who offer hormone therapy or other transition-related care to trans patients. Before Planned Parenthood began its HRT program, there was a doctor in Eureka Springs and one in Little Rock. Providers often refuse to see transgender people at all—even for a cold.
Without a mechanism in place to lodge discrimination complaints, these patients might have even fewer places to go.
While the Eureka Springs City Attorney was also unavailable prior to press time, Wilks predicted the spirit of its nondiscrimination ordinance would remain in place. He said the city would continue to defend its LGBTQ population “with a baseball bat.”
Wilks means that literally. He related a story about an elderly woman who used to own a dress shop in Eureka Springs before she retired. One day a group of “rednecks” began harassing a gay couple for holding hands, calling them “faggots.” The woman ran out of her shop clutching a broom in her hands and chased them down the street.
“Homophobia and racism are not accepted here in Eureka Springs,” Wilks said.