Seven months after the Arkansas Supreme Court ruled Fayetteville's LGBT-inclusive civil rights ordinance did not comport with state law, a lower court must now decide if that law is even constitutional.
In Washington County Circuit Court before Judge Doug Martin, lawyers on both sides argued over discovery motions and the right to stay administration of Fayetteville's civil rights ordinance and enforcement commission. In place for two years, the ordinance was established explicitly to protect LGBT residents and visitors from discrimination -- because state law does not.
In 2015, the Arkansas General Assembly passed Act 137 the “Intrastate Commerce Improvement Act" to bar municipal and county anti-discrimination ordinances not already codified in Arkansas law. Arkansas's civil rights act bars discrimination based on race, religion, national origin, gender and disability, but not sexual orientation or gender identity. So Eureka Springs, Fayetteville, Little Rock, Hot Springs and Pulaski County in recent years have all expanded non-discrimination ordinances to protect LGBT residents from bias in employment, housing and public accommodation.
In response, the social conservative group “Protect Fayetteville” which opposes expansion, sued the city of Fayetteville in Washington County Circuit Court last year. Fayetteville argued the state's anti-bullying statute includes LGBT students therefore constitutes a precedent. Judge Martin presided over that case, ruling Fayetteville's ordinance does not violate Act 137.
Arkansas Attorney General Leslie Rutledge, representing the state, joined "Protect Fayetteville" as an intervenor in appealing Martin’s decision to the Arkansas Supreme Court. The justices unanimously reversed Martin’s ruling, but remanded the case to Martin to decide if Act 137 itself is even constitutional, a consideration not part of the original case.
The American Civil Liberties Union of Arkansas has since joined defendants in the case, intervening on behalf of several Fayetteville LGBT residents and a local gay-rights advocacy group.
Martin's first item of business during Thursday's hearing was to decide on a protective order requested by the state barring certain discovery.
"Attorney General Rutledge claims we need to find animus to prove Act 137 is constitutional," argued Kit Williams, attorney for the city of Fayetteville.
Williams says he wants to depose the sponsors of Act 137, state Rep. Bob Ballinger (R-Berryville) and Sen. Bart Hester (R-Cave Springs), as well as secure relevant correspondence, tweets and documents to prove they were bias in drafting the bill. Williams says questions regarding legislative intent have been central in several U.S. Supreme Court cases regarding LGBT civil rights.
Ballinger and Hester are among 102 members of the general assembly however who’ve recently invoked legislative privilege, a kind of immunity, specifically in this case.
After two hours hearing arguments from both sides, Martin decided against the state’s request to limit discovery, a legal term for when lawyers representing defendants and plaintiffs interview key individuals and secure relevant documentation.
"I am going to deny the state's motion for protective order," he said. "Legislative intent is central to this case so I order that parties work together on shrinking the scope of discovery requests," in response to the state arguing it would have to provide "billions" of documents.
Outside the courtroom, Williams says he will now proceed with subpoenas for depositions.
"I think it is appropriate that the two legislative sponsors of Act 137 get a chance to explain their side of it and answer questions about why they wanted to pass this particular act."
The city of Fayetteville has long argued the act is rooted in bias against LGBT Arkansans.
Nicholas Bronni, Deputy Solicitor General who testified at the hearing on the state's behalf, declined to comment for this report, but Travis Story, lead attorney for "Protect Fayetteville," says the plaintiffs won’t stand by the judge’s rejection of the protective order.
“The state’s position, which we are in agreement with, is that there are privileges. I think this is an issue that is going to be appealed to the Arkansas Supreme Court.”
But Holly Dickson, legal director of the ACLU of Arkansas, says the ruling is fair.
“The Attorney General has made the policy decision to bring a case against the city of Fayetteville in the name of and with the full powers of the state of Arkansas, yet sought to immunize the state of Arkansas in unprecedented ways."
A second matter decided Thursday regarded the state’s request to enjoin, or block administration of, Fayetteville’s civil right code because plaintiffs say it harms the people of Arkansas, for example Christian-owned businesses that do not want to be forced to serve LGBT clients. It took less than an hour for Martin to rule against the state’s request for the preliminary injunction.
“The Fayetteville ordinance has been in place for two years protecting the residents," says Dickson, "and they have no evidence that it’s harmed anyone."
But Story says the court should have stayed the ordinance because in February the Supreme Court ruled it violates Act 137.
“And for those reasons the plaintiffs plan on appealing the ruling and let the Arkansas Supreme Court help decide.”
A November bench trial to consider the constitutionality of Act 137 scheduled in Washington County Circuit Court for November may likely be delayed.
This story is produced by Arkansas Public Media, a statewide journalism collaboration among public media organizations. Arkansas Public Media reporting is funded in part through a grant from the Corporation for Public Broadcasting, with the support of partner stations KUAR, KUAF, KASU and KTXK and from members of the public. You can learn more and support Arkansas Public Media’s reporting at arkansaspublicmedia.org. Arkansas Public Media is Natural State news with context.