Arkansas Cities Pass LGBT Protections That Defy State's New Discrimination Law

Local governments are likely headed for legal trouble after taking a stand against the state's new law that blocks them from banning discrimination based on sexual orientation or gender identity.
by | May 11, 2015
Demonstrators gather at the Arkansas state Capitol to protest Act 137. (AP/Danny Johnston)

*Last updated May 13 at 7:10 a.m. to reflect the results of Tuesday's vote.

State lawmakers in Arkansas wanted to block local governments from passing ordinances that ban discrimination based on sexual orientation or gender identity. So far, it hasn't worked out that way.

In February the legislature passed a bill, Act 137, to block cities from offering anti-discrimination protection to groups not covered under state law. Since then, however, several places have done just that.

"In the immediate aftermath of this law being passed by the legislature, we wanted to jump right out and make a clear, definitive statement," said Conway Mayor Tab Townsell.

New laws are also on the books in Little Rock, North Little Rock and Hot Springs. The legislative body in Pulaski County, known as the quorum court, gave inital approval Tuesdsay to a measure that would block hiring discrimination by the county and its vendors against gay, lesbian, bisexual and transgender (LGBT) people. Also on Tuesday, residents of Eureka Springs voted to uphold a measure approved by the City Council in February.

All of this is taking place because there's still a period before the state law takes effect. Sponsors didn't have the votes to enact an "emergency clause" that would have allowed the measure to take effect immediately. Instead, the law begins 90 days after the end of the legislative session, which is normal procedure in Arkansas, and thus will take effect July 22.

That explains the rush. But it doesn't mean the local ordinances will remain. Under the new state law, they will not be grandfathered in.

"These ordinances could have been passed five years ago and the state law would still apply," said Jerry Cox, president of the Family Council, a group based in Little Rock that supports the state prohibition. "As soon as that law goes into effect, any local law that conflicts with that simply would not be enforced."

Actually, it's likely local governments will continue to enforce their new rules. But they will be subject to legal challenge.

Everyone seems to think that an ordinance such as the one passed in Conway, which applies only to municipal employment, is valid because cities have a right to set their own hiring and firing policies.

"I don't think you would get much pushback from people on the right if these ordinances only applied to city employment policies," Cox said.

But disputes will arise in places like Little Rock, where the new ordinance applies to vendors who do business with the city. A private company that doesn't want to adopt anti-discrimination policies could sue. (The only other state with a similar law is Tennessee, where court challenges are still pending four years after passage.)

Arkansas state Rep. Bob Ballinger, a sponsor of the state law. (AP/Danny Johnston)

"It's a mistake, and they'll find they have to deal with litigation," said state Rep. Bob Ballinger, a sponsor of the state law.

Ballinger said that might be one reason why local governments have rushed into action. By getting ordinances in ahead of the state law's effective date, they can argue that the state law interferes with an existing right.

"They may be trying to set up a situation where they can build a legal case against it," he said.

In Little Rock, City Attorney Thomas Carpenter said the local ordinance is legally sound. Act 137 would bar local governments from offering protection to any class of people not protected by the state. Supporters say that refers to the Arkansas Civil Rights Act, which bars discrimination on the basis of age, race and religion, but not sexual preference or gender identity. But Carpenter argued that his city can offer protection to groups who are shielded under any state law, and an anti-bullying law in Arkansas protects LGBT individuals.

"When you read the [state] law that was passed, it says you can't enact something that protects a class that's not currently in state law," said City Councilwoman Kathy Webb, who sponsored the Little Rock ordinance. "That's not specific -- it doesn't say the Arkansas civil rights law."

City Councilwoman Kathy Webb, center, sponsored Little Rock's new ordinance. (AP/Danny Johnston)

Aside from the legal arguments, it's clear that the towns in question wanted to send a political message. The localities that have adopted anti-discrimination ordinances are either relatively large cities, such as Little Rock; tourist destinations, such as Hot Springs; or college towns, such as Conway.

"We're a college town and we're trying to set ourselves up as a tech community," said Conway Mayor Townsell. "We wanted to set up a distinction between what is happening in the state and our community."

A Fayetteville ordinance adopted last year triggered the state law. Although voters overturned the Fayetteville rule, state lawmakers remained concerned about a patchwork of legal requirements that wouldn't be uniform across the state. They moved too quickly for opponents to stop them. Walmart, for instance, expressed its opposition to Act 137 after it had already passed. Gov. Asa Hutchinson let the legislation become law without his signature.

Subsequently, business groups and others not only backed the local measures but helped lead opposition against a religious freedom bill in the legislature. Hutchinson fashioned a compromise in the latter case, convincing legislators to pass a bill that was identical to federal statute.

Now, the more liberal parts of the state are on record as supporting protection for LGBT individuals, even if the local measures may not withstand legal scrutiny.

"Obviously, there's a bit of a cultural phenomenon going on," Ballinger said. "Eventually,  there's going to be a balance that's struck that will end up being livable for a majority of the people in the state."

*This story has been updated to reflect