Arkansas top court rules ban on sexual orientation discrimination unenforceable
February 01, 2019
The Arkansas Supreme Court issued two opinions on Wednesday striking down a city ordinance that banned discrimination based on gender identity or sexual orientation.
Both decisions involved challenges to an ordinance, passed by the Fayetteville City Council and approved by the city in a referendum, to extend the protections of the federal Civil Rights Act and the Arkansas Civil Rights Act to lesbian, gay, bisexual and transgender individuals.
The court first issued an opinion on this case in 2017 holding that the Fayetteville ordinance violated the state’s Intrastate Commerce Improvement Act (Act 137), which prevents individual counties and municipalities from enacting their own anti-discrimination protections. Fayetteville enacted its ordinance directly following Act 137’s passage in 2015.
The case was then remanded to the Circuit Court, which denied the preliminary injunction requested by the groups opposing the ordinance and allowed several additional parties to intervene in the case and raise the issue of Act 137’s constitutionality.
In one opinion on Wednesday, the Arkansas Supreme Court reversed the Circuit Court’s order denying a preliminary injunction and declined to address the constitutionality issue, indicating that the Circuit Court had exceeded its jurisdiction.
In another opinion concerning the same case, the court on Wednesday addressed several issues of first impression raised by the State surrounding legislative and executive privilege in Arkansas. The Circuit Court had allowed the intervening parties in the Fayetteville case to subpoena sitting legislators and request documents related to discovery. The Supreme Court held that the Arkansas Constitution affords the state’s legislative and executive branches privilege against discovery in certain cases.
Arkansas Attorney General Leslie Rutledge applauded the decisions in a statement: “Today’s unanimous decisions reaffirm the State’s authority to ensure uniformity of anti-discrimination laws statewide and to prevent businesses from facing a patchwork of nondiscrimination ordinances. … These decisions show that the City of Fayetteville is not above or immune from State law.”