LITTLE ROCK — A Fayetteville city ordinance that bans discrimination against lesbian, gay, bisexual and transgender people should be found in violation of a 2015 state law and struck down, an attorney for the state argued Thursday before the Arkansas Supreme Court.
Fayetteville’s city attorney argued that the ordinance does not violate the state law and should be upheld.
The state’s highest court heard oral arguments but did not immediately issue a ruling in the state’s appeal of a Washington County circuit judge’s ruling last March that upheld the ordinance.
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approved an ordinance prohibiting discrimination based on sexual orientation or gender identity in 2014, but voters repealed it later that year.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 of 2015, or the Interstate Commerce Act, which prohibits cities and counties from adopting ordinances that prohibit discrimination “on a basis not contained in state law.”
Project Fayetteville, a group formed to oppose the ordinance, sued to have the ordinance 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.
In oral arguments Thursday, state Solicitor General Lee Rudofksy told the Supreme Court that Act 137 is not intended to target LGBT people but to ensure that anti-discrimination laws are the same in all parts of the state so that businesses do not have to deal with “a patchwork” of conflicting ordinances.
“Uniformity of law is a legitimate government interest,” he said.
Fayetteville City Attorney Kit Williams said some legislators’ statements about Act 137 showed that it was motivated by anti-gay sentiment, and noted that a group of businesses has submitted a brief to the court urging it to uphold the ordinance.
Williams also said Martin was correct in finding that the ordinance does not prohibit discrimination on a basis not contained in state law because LGBT people are protected elsewhere in Arkansas law, including in an anti-bullying law.
Rudofsky argued that gender identity is not a protected class in Arkansas and that its mention in an anti-bullying law does not make it a protected class. There is no mention of sexual orientation or gender identity in the Arkansas Civil Rights Act, he said.
Justice Rhonda Wood noted that Act 137 states that its intent is to prohibit different parts of the state from having differing anti-discrimination ordinances. She asked Williams, “How do you get around the plain language of the act?”
Williams said he did not have to get around it because Act 137 does not bar an ordinance that offers protections on a basis already contained in state law.
“It says we can look anywhere in state law. It could have said, ‘Look only at the Civil Rights Act,’ but it doesn’t,” he said.
Justice Shawn Womack, a former Republican state legislator, asked Williams whether, if he was the victim of property theft, he could could be considered part of a protected class because there are protections in state law for victims of property theft.
Williams said protections in state law for LGBT people are different because they expressly prohibit discrimination against a group of people.
The court did not say when it would issue a ruling.
Several other Arkansas cities have approved varying levels of protections for LGBT people since Act 137 was passed.