LITTLE ROCK — The Arkansas Supreme Court on Thursday struck down a Fayetteville city ordinance that prohibited discrimination based on gender identity or sexual orientation.
In a unanimous decision, the state’s highest court ruled that the ordinance violated Act 137 of 2015, which bars cities and counties from adopting ordinances to prohibit discrimination “on a basis not contained in state law.”
The Fayetteville City Council approved an ordinance prohibiting discrimination based on sexual orientation or gender identity in 2014, but voters repealed it later that year. In September 2015, Fayetteville voters reversed themselves and voted to approve a similar ordinance.
Between the repeal of the first ordinance and the passage of the second, the state Legislature approved Act 137, or the Interstate Commerce Act. Supporters argued that anti-discrimination laws should be consistent statewide so businesses do not have to deal with a patchwork of different laws, while opponents argued that the legislation was anti-gay.
Project Fayetteville, a group formed to oppose the ordinance, sued to have it struck down, but Washington County Circuit Judge Doug Martin ruled in March that the ordinance did not violate Act 137. The state joined Project Fayetteville and other opponents of the ordinance in appealing that ruling.
The Supreme Court on Thursday rejected the city’s argument that its ordinance provided protections on a basis already contained in state law. The city had pointed to state laws, including an anti-bullying law, that ban certain actions targeting people based on gender identity or sexual orientation.
The high court said a conflict between the ordinance and Act 137 is clear based on the plain language of the state law, which states that its purpose is to ensure anti-discrimination laws and obligations are uniform statewide. The Arkansas Civil Rights Act does not extend protections to people based on gender identity or sexual orientation, and the Fayetteville ordinance sought to expand protections to Fayetteville residents on those bases, the court said.
“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 court said in an opinion written by Justice Josephine Hart.
The court also said that although some state laws mention gender identity and sexual orientation, they do not create protected classifications or amount to discrimination bans.
The state argued that Act 137 is constitutional. The Supreme Court said it would not rule on the law’s constitutionality because that issue was not addressed by the lower court.
Judd Deere, a spokesman for Attorney General Leslie Rutledge, said in a statement Thursday, “Attorney General Rutledge is grateful that the Arkansas Supreme Court unanimously agreed with the state’s interpretation of Act 137 and reversed the lower court’s decision. Act 137 requires that discrimination protection be addressed at the state level and be uniform throughout the state.”
Fayetteville City Attorney Kit Williams said Thursday, “We’re somewhat disappointed that the Supreme Court did not agree with the circuit judge who found that our civil-rights protection ordinance was in fact compliant with state law, but they’ve made that decision, and I was happy that the Supreme Court rejected the attorney general’s attempt to have them make an immediate ruling on the constitutionality of the Interstate Commerce Act.”
Williams said the city’s next move will be to argue in circuit court that Act 137 is unconstitutional.