On Tuesday voters in Fayetteville approved a so-called “nondiscrimination” ordinance that the Attorney General recently opined was unenforceable under state law.
The final vote was 53% in favor of the ordinance to 47% against the ordinance. According to the Washington County Election Commission, voter turnout in the special election on the ordinance was approximately 29%.
The ordinance writes special protections into the city code for people based on sexual-orientation and gender-identity. It is substantially similar to an ordinance Fayetteville voters overturned last December. We have written repeatedly how these ordinances threaten religious liberty.
Many have mistakenly described the ordinance as exempting churches and religious organizations. The truth is the ordinance contains very narrow language that, at best, exempts church property and church hiring practices; however, a minister could be penalized under this ordinance for declining to solemnize a same-sex marriage, and people of faith who own catering services, florist shops, wedding venues, and so on receive no protection under the ordinance at all.
Earlier this year the Arkansas Legislature approved Act 137 which prevents local municipalities from enacting any nondiscrimination ordinance that differs from state law. The Attorney General released an opinion last week making it clear ordinances like the one Fayetteville has adopted are unenforceable under Act 137.
Below are some points on how the ordinance, if enforced, could negatively affect Fayetteville, Arkansas.
THE THREAT TO RELIGIOUS LIBERTY
The 2014 ordinance could have been used to prosecute a church or religious school that declined to hire, for example, a gay or transgender teacher, receptionist, or bookkeeper.
The new ordinance says, “Churches, religious schools and daycare facilities, and religious organizations of any kind shall be exempt from this Article.”
There’s a glaring problem with this “exemption,” however: It fails to exempt ministers and religious officials individually.
Many ministers routinely perform wedding ceremonies and other services at sites other than a church; oftentimes these ceremonies are performed at parks, private wedding venues, gardens, and so on. The ministers, in these instances, may be ordained by a specific church or denomination, but the site of the wedding is not a religious one.
Under this ordinance, a minister who declines to perform a same-sex wedding at one of these locations could be penalized. To suggest churches have religious liberty, but ministers do not is ludicrous, and yet that is exactly what this ordinance does.
The ordinance also fails to protect individuals and business owners with religious objections to same-sex marriage. Across the country we have seen time and time again that photographers, florists, bakers, caterers, wedding venue owners, and similar individuals can be sued and penalized for declining to participate in same-sex ceremonies. In these instances, individuals and business owners are simply trying to live their public lives in accordance with their deeply-held religious convictions–something people of faith are often accused of failing to do.
No one should be forced to aid or participate in an activity that goes against their deeply-held religious convictions, and yet under this ordinance religious individuals could face a serious ultimatum: Participate in a same-sex ceremony or pay a fine to the City of Fayetteville.
Of course, the threats posed by this ordinance go beyond same-sex weddings. For example, a print shop owner with religious objections to homosexual conduct could be forced to print material that goes against his or her deeply-held religious convictions; we have already seen a similar case unfold in Kentucky.
This ordinance continues to treat religious liberty like something that can only be exercised within the confines of a church or private school. That’s a serious issue.
THE EXPANSION OF GOVERNMENT
The expansion of government under this ordinance is very straightforward: It creates a Civil Rights Commission and it increases the workload of the City Attorney’s Office.
Under the ordinance, the City Attorney’s Office fields allegations of discrimination and works with the Civil Rights Commission to attempt to mediate disputes and conduct hearings.
The result is more activity and bureaucracy at the level of city government, which, in my experience, always comes at the expense of the taxpayers.
THE CHILLING EFFECT ON LOCAL BUSINESS
As with the 2014 ordinance, any business accused of discrimination under this ordinance will be forced to spend time and money defending itself and its reputation. The possibility of new taxes and frivolous complaints from disgruntled employees as a result of this ordinance may very well deter business expansion in Fayetteville.
DOES THIS ORDINANCE ALLOW MEN TO ENTER WOMEN’S RESTROOMS AND VICE VERSA?
Yes. The 2014 ordinance included some rather meaningless language attempting to address concerns about men entering women’s restrooms. The new ordinance does not even include that language.
Some proponents of the ordinance have tried to dismiss this as “fear mongering.” Here is why it is a legitimate concern:
Under ordinances like this one, a business may not treat an employee or customer differently on the basis of the person’s “real or perceived gender identity.” That means a biological male who claims to be female must be treated like a biological female.
The concern is that this will give men a valid excuse to enter women’s restrooms, locker rooms, showers, and similar facilities, and that sexual predators may exploit this provision in the ordinance.
We have written before about biological males using women’s locker rooms at exercise gyms; under this ordinance, exercise gyms in Fayetteville could be forced to let employees and customers use the restrooms and locker rooms of their choice. That means a biological male who claims to be female can use the women’s locker rooms, and vice versa.
As we have said repeatedly, city officials have yet to demonstrate that discrimination is a problem in Fayetteville, much less that this ordinance is the solution to that problem. The ordinance carries a number of negative consequences, and Fayetteville’s religious leaders and business leaders are the ones who stand to suffer the most.
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.