In 2015 the Arkansas Legislature passed Act 137, the Intrastate Commerce Act. This good law prevents local municipalities from creating protected classes not found in state law.
It ensures Arkansas does not wind up with a patchwork of conflicting civil rights ordinances and policies in different cities and counties. It also helps ensure local municipalities do not adopt ordinances that undermine religious liberties.
In the fall of 2015 the City of Fayetteville adopted an ordinance creating protections based on sexual orientation and gender identity.
Arkansas Attorney General Leslie Rutledge wrote that the ordinance was unenforceable under Act 137. Last February the Arkansas Supreme Court agreed and overturned the ordinance, saying it violates state law.
The discussion should have ended there, but now attorneys from the City of Fayetteville and the State of Arkansas are back in court, arguing over whether or not Act 137 is constitutional. Fayetteville’s attorneys say the law is not constitutional. The state’s attorneys say it is.
The judge overseeing the case has even gone so far as to suggest that lawmakers who sponsored Act 137 should be questioned to determine their reasoning for the legislation.
Legislative intent is important, but it has nothing to do with whether or not Act 137 is constitutional. Laws about discrimination are best left to the state and federal governments. Act 137 simply ensures the state will make those policies rather than local municipalities.
Photo Credit: “Old Main from the northwest, University of Arkansas, Fayetteville, Arkansas (autumn)” by Brandonrush – Own work. Licensed under Creative Commons Attribution-Share Alike 3.0 Unported.
On Monday state Senator Linda Collins-Smith (R-Pocahontas) filed S.B. 774, the Arkansas Physical Privacy and Safety Act.
Family Council President Jerry Cox released a statement saying, “This is a good bill that will help ensure all Arkansans are protected and their privacy is respected. Arkansas needs this legislation to help protect children in public school showers, locker rooms, and restrooms. I hope the Arkansas Legislature will support this good bill.”
Cox said the legislation protects the physical privacy of people in showers, restrooms, and locker rooms on government property. “This bill does not affect private businesses like Walmart or Target. It is narrowly tailored to apply to government property, such as public schools, state parks, and government buildings. It simply requires a person using a public shower, locker room, restroom, or similar facility on government property to use the facility that corresponds to the biological sex listed on his or her original birth certificate. It also provides reasonable accommodations for transgender individuals.”
Cox said the legislation is important, because Arkansas law currently does not protect the privacy of students and others on government property. “Every student in Arkansas has a right to privacy and safety. Public school students’ school records are protected by law, because we value students’ privacy. A student’s physical privacy should be just as important. This bill will help protect the privacy of public school students in school locker rooms and restrooms.”
Cox said Family Council plans to support passage of the Arkansas Physical Privacy and Safety Act. “Arkansas has a duty to protect the privacy and safety of its schoolchildren. I believe that’s something our elected officials want to do. That’s what S.B. 774 does. We look forward to working with legislators to pass this good bill into law.”
Earlier this year the Arkansas Legislature passed Act 137 preventing city or county governments in Arkansas from creating protected classes of citizens not found in state law.
Despite Act 137, four cities along with Pulaski County have passed ordinances extending special protections on the basis of, among other things, sexual-orientation and gender-identity.
Today Attorney General Leslie Rutledge issued an opinion on the five local ordinances, saying,
“Act 137 renders unenforceable any ordinance that prohibits discrimination on a basis not already contained in state law. Because current state law does not prohibit discrimination on the basis of sexual orientation or gender identity, it is my opinion that Act 137 renders the five ordinances unenforceable in this respect. . . .
“This language indicates that the General Assembly intended Act 137 to ‘hold the field’ with respect to antidiscrimination law. The Act expressly prohibits localities from regulating in that field. More specifically, the Act effectively prohibits cities and counties from prohibiting discrimination in a way that varies from state law. . . . By removing the cities’ and counties’ ability to enact antidiscrimination laws at variance with state laws, Act 137 clearly holds the field and leaves no room for political subdivisions to act.”
With seventy-five counties and hundreds of cities and towns across the state, it makes sense that policies concerning civil rights and discrimination would be addressed at the state level rather than left up to each individual city council or quorum court.
The opinion comes as early voting begins in Fayetteville, where voters have been asked to weigh in on a so-called “nondiscrimination” ordinance. Even if passed, according to this opinion from the Attorney General, the ordinance would be unenforceable as it is currently written.
We have discussed before how these local ordinances carry a number of unintended consequences. Among other things, they threaten to infringe religious liberty, and some of them even inadvertently allow men to use women’s restrooms, locker rooms, showers, and similar facilities–and vice versa.