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Arkansas Supreme Court: Anti-Anti-Discrimination Law Trumps LGBT Rights

By George Khoury, Esq. on February 28, 2017 | Last updated on March 21, 2019

In a recent opinion, issued last week, by the Arkansas Supreme Court, a city's local civil rights law protecting LGBT individuals from discrimination was put in peril. The court's decision is not the final nail in the proverbial coffin, as they have ordered the lower court to reconsider their ruling based upon their order. As such, supporters of the local anti-discrimination statute are gearing up to fight it out again.

The challenged anti-discrimination law was passed by voters in the city of Fayetteville, and essentially extended the same protections to LGBT individuals as provided to the protected classes listed in the Arkansas Civil Rights Act of 1993. While the law was passed by local voters, and seems to reflect positively on the voters of Fayetteville, unfortunately, the law is facing a rather large technical hurdle.

Anti-Anti-Discrimination Law

The court's rationale in reversing the ruling that upheld the Fayetteville anti-discrimination statute relied upon an Arkansas state law that prohibits local governments from expanding anti-discrimination laws to classes of individuals not specifically listed by state law (we can call that state law the anti-anti-discrimination statute). Proponents of the Fayetteville law argued that LGBT individuals were protected elsewhere in state law, and as such, could be protected by the local law. However, the court disagreed on that construction of the law.

The state's anti-anti-discrimination law was passed so that employers within the state do not have to be concerned about various locations throughout the state having different laws regarding discrimination. Arkansas, and only a few other states, have laws that prevent local governments from extending civil rights protections. For that reason, the court determined that a law that expanded civil rights protections to those not listed in the civil rights laws, could not co-exist with the anti-anti-discrimination statute.

Technical Hurdles

Although the state's supreme court essentially struck down the law, they provided a clear path for the civil rights advocates to pursue. The court clearly contemplated whether the state's anti-anti-discrimination statute was constitutional, but declined to issue a ruling on that issue, as it stated that the issue was not properly before it. This, for all intents and purposes, is a clear instruction for the supporters of the Fayetteville law to challenge the anti-anti-discrimination statute's constitutionality.

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