Mayor Butch Berry said Eureka Springs would continue to enforce its Nondiscrimination Ordinance 2223 despite a recent State Supreme Court ruling that a similar NDO passed by the City of Fayetteville violated Act 137, a proposal passed the Arkansas Legislature to prevent communities from passing laws to protect lesbian, gay, bisexual and transgender (LGBT) people.
The issue pits Eureka Springs, which affirmed Ordinance 2223 outlawing discrimination against based on sexual orientation or gender identity by 71 percent of the voters in 2015, against its own representative in the Arkansas House, Rep. Bob Ballinger, who sponsored Act 137.
“It is still my personal opinion that the Act 137 is unconstitutional because it is a discriminating law and is in conflict with the U.S. Constitution regarding equal rights for everyone,” Berry said. “In my opinion, Ballinger wrote this law to discriminate against the LGBT community.”
The Arkansas Supreme Court ruled unanimously on Feb. 23 that Fayetteville’s NDO violated Act 137, but declined to rule whether or not Act 137 was constitutional. That issue was sent back to the Washington County Circuit Court for a decision.
A statement from Judd P. Deere, spokesman for Attorney General Leslie Rutledge, said Rutledge was grateful that the Arkansas Supreme Court unanimously agreed with her 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,” Deere said. He added that logic of the ruling from the State Supreme Court appears to apply to other similar local ordinances.
“But as far as the full impact of the ruling on those ordinances, that is something the attorney general is still reviewing,” Deere said. “We will now go to the lower court and address the constitutionally of Act 137. But the attorney general does believe that Act 137 is constitutional.”
If the Washington County Circuit Court rules in favor of 137, that would uphold the law that prevents local governments from providing protections to any class not protected under state law. If Act 137 is declared unconstitutional, local NDOs would remain in effect.
“Until we know what the lower court is going to do, we will keep an open mind and maintain our present status quotation,” Berry said. “I am in the process of contacting our city attorney and the municipal league attorneys for their advice. The city will review Ordinance 2223 and determine its course after the lower court makes its ruling.”
Lamont Richie, who represents Eureka Springs in Carroll County Quorum Court, agrees the constitutionality of Act 137 will determine whether the NDOs in Eureka Springs and Fayetteville remain in effect.
“The question of whether or not Act 137 is constitutional remains to be answered,” Richie said. “The court did not enjoin Fayetteville from enforcing its ordinance. It remanded the case for further proceedings. I will wait to see what the trial court does. But in the meantime, if I had a say in the matter, I would argue that Fayetteville’s NDO, along with 2223, remain on the books.”
Richie said backers of Act 137 framed it as an attempt to help intrastate commerce.
“But to me, that was just a polite way of making sure that sexual orientation and gender identity protections didn’t make their way into Arkansas,” Richie said. “Those who supported Fayetteville’s NDO and 2223 are still here… and we are not going away.”
Neither Fayetteville nor Eureka Springs has received complaints about discrimination since their NDOs went into effect two years ago.
While the two NDOs are similar, they might end up having different standing in court. Fayetteville’s NDO was passed after Act 137 passed the legislature. Eureka Springs’s NDO was passed by city council before Act 137 was approved.
“Our argument was that it was important to have 2223 on the books prior to the effective date of Act 137,” Richie said. “At that time, the legislature was fast-tracking 137. An emergency clause was part of it originally. So 2223 was passed with an emergency clause. I believe the effectiveness of our ordinance well before Act 137 became law [July 2015] is an argument for why 2223 should not be invalidated by 137. That said, if 137 is found to be unconstitutional, then that question is moot.”
A legal argument might be made in an appeal that the state’s action took away rights from citizens.
The court ruling comes at a time when there is increasing concern about LGBT rights across the country.
“The current political environment that is hostile toward the will of the people of Eureka Springs is playing out across the country with the new leadership in Washington, and will more than likely continue,” city alderman David Mitchell said. “The actions of the City of Eureka Springs were based on honest, thoughtful and considerate citizens who value individual freedom and expression. No matter what has happened, the spirit of that ordinance lives on. Ballinger might find solace in the overturn at the state level of our ordinance, but he cannot take away the actions and spirit that was present during the passage of Ordinance 2223.”