Fayetteville Voters Approve Controversial Anti-Discrimination Law

In Fayetteville, Arkansas on Tuesday voters approved the city's controversial Uniform Civil Rights Protection Ordinance.  According to the Arkansas Democrat-Gazette, complete unofficial returns show 7,666 votes for and 6,860 against the Ordinance that bars discrimination in employment, public accommodations, real estate, contracts and voting on the basis of sexual orientation and gender identity. Opponents, many of whom object that the religious exemptions in the ordinance are too narrow, have filed suit challenging the legality of the Ordinance. They claim it violates free exercise and free speech rights as well as Arkansas' recently enacted Intrastate Commerce Improvement Act that prohibits counties, municipalities and other political subdivisions from expanding civil rights protections beyond those found in state law. (See prior posting.)

Satanic Temple Asks To Place Baphomet On Arkansas Capitol Grounds

In a press release today, The Satanic Temple announced that it has formally asked the Arkansas’ Capitol Arts and Grounds Commission for permission to place its "Baphomet" monument on the Capitol grounds next to an already-authorized Ten Commandments monument.  The Satanic Temple contends that when Arkansas earlier this year enacted SB 939 authorizing the Ten Commandments monument, it effectively opened the Capitol grounds to private donations and may not engage in viewpoint discrimination in accepting them.It says it will place an inscription on the Baphomet monument reading:

Be it known to all that this statue commemorates the history of law in the United States of America. From the deplorable Satanic Witch Hunts, the cherished doctrines of due process, presumption of innocence and the protection of minorities from the tyranny of mob rule became part of the established foundation of American jurisprudence.

Baphomet was unveiled in a ceremony in Detroit earlier this summer. (See prior posting.) A Hindu group also wants to place a monument on the Arkansas Capitol grounds. (See prior posting.)

Suit Challenges Fayetteville, Arkansas Anti-Discrimination Ordinance

In Fayetteville, Arkansas, a group known as Protect Fayetteville filed suit yesterday challenging the city's Uniform Civil Rights Protection Ordinance 5781 which voters are casting ballots on in a referendum this month.  The Ordinance expands civil rights protections to include bans on discrimination on the basis of sexual orientation and gender identity, and creates a city Civil Rights Commission.  The Ordinance contains an exemption for churches, religious schools and daycare facilities, and religious organizations. Opponents, however, complain that there is no exemption for individual clergy. The Ordinance was enacted after voters repealed an earlier anti-discrimination law last year.  (See prior posting.) According to KFSM News, the lawsuit claims that the Ordinance violates Arkansas' recently enacted Intrastate Commerce Improvement Act that bars counties, municipalities and other political subdivisions from expanding civil rights protections beyond those found in state law. The lawsuit also claims the Ordinance violates freedom of religion and speech.

More Messy Procedural Decisions In Arkansas Same-Sex Marriage Litigation

The procedural messiness that has surrounded much of the litigation over same-sex marriage manifested itself again in two recent judicial decisions in Arkansas.  In Henson v. Walther, (AR Cir. Ct., June 9, 2015), an Arkansas trial court judge held that marriages of same-sex couples performed in the state between May 9 and May 16 are valid.  Here is the background:

On May 9, a state trial court held that the state's constitutional ban, and two statutory provisions making same-sex marriages void violate the 14th Amendment's equal protection and due process clauses. However on May 14, the Arkansas Supreme Court pointed out that the trial court had not invalidated a third provision in Arkansas law prohibiting the issuance of marriage licenses to same-sex couples, and had not included language actually enjoining enforcement of the bans on same-sex marriage that it declared unconstitutional.  The trial court responded on May 15 by issuing an order nunc pro tunc granting an injunction and including the omitted third statutory provision. The trial court made it all retroactive to May 9, indicating that this had been the original intent in issuing the May 9 decision. (See prior posting.) On May 16, the Arkansas Supreme Court issued an order staying the trial court's order pending appeal.

The Director of the Arkansas Department of Finance and Administration has refused to recognize the validity of same-sex marriages performed between May 9 and May 16, arguing that the trial court lacked authority to make its May 15 ruling retroactive. He directed same-sex couples married during that period to file separate rather than joint tax returns, and refused to permit same-sex spouses to enroll in the state employee health insurance plan. In Henson the trial court judge disagreed, asserting that the state Finance Director was acting with "shameless disrespect for fundamental fairness and equality." AP reports on the decision.

Meanwhile an appeal of the underlying same-sex marriage challenge has been pending in the Arkansas Supreme Court for over a year-- bogged down in part by an unusual dispute over who are the proper Supreme Court justices to decide the case.  In September 2014, Justice Cliff Hoofman recused himself and the governor appointed Robert W. McCorkindale to serve as special justice in place of Hoofman. The case was briefed and argued before the end of 2014, but the state Supreme Court ended its term without handing down a decision. When the new term began, two new justices had been elected, one of whom was Justice Rhonda Wood who replaced Justice Hoofman.  She insisted she had a right to participate in deciding the appeal.  In Smith v. Wright, (AR Sup. Ct., May 7, 2015), with Jutice Wood and two other justices recusing themselves and replaced by 3 special justices, the Court held that newly-elected Justice Wood, not the holdover special justice, should participate in deciding the appeal.

Arkansas Legislature Passes Ten Commandments Monument Bill

The Arkansas legislature on Wednesday gave final passage to SB 939, The Ten Commandments Monument Display Act (full text) which directs the secretary of state to arrange for private groups to place a Ten Commandments monument on the State Capitol grounds. The bill has been sent to Governor Asa Hutchinson for his signature.

The bill begins with a series of findings emphasizing the importance of the Ten Commandments as a foundation of the U.S. and Arkansas legal systems. One of the findings reads:

The Ten Commandments represent a philosophy of government held by many of the founders of this nation and by many Arkansans and other Americans today, that God has ordained civil government and has delegated limited authority to civil government, that God has limited the authority of civil government, and that God has endowed people with certain unalienable rights, including life, liberty, and the pursuit of happiness.

The bill also sets out the specific text of the Ten Commandments that is to appear on the monument. The bill authorizes the Attorney General to defend against any legal challenge to the monument, or to request Liberty Legal Institute to prepare and present a defense.  Northwest Arkansas Democrate Gazette reports on the legislature's action.

Arkansas Quickly Enacts Narrower Version of RFRA Than Originally Passed

Heeding Governor Asa Hutchinson's request (see prior posting), the Arkansas state legislature today gave final passage to a narrower version of the Religious Freedom Restoration Act than the one it had passed earlier this week.  Senate Bill 975 (full text) now more closely mirrors the federal RFRA and is limited to claims or defenses against the government.  The ability to use the law in suits involving private parties was removed. The new version also eliminates a number of the broad definitional sections in the earlier bill. The law specifically provides that it is to be interpreted consistent with the federal RFRA and case law under it. As reported by USA Today,  Governor Hutchinson signed the bill  into law 30 minutes after the House completed passage of it.

Arkansas Governor Tells Legislature To Revise RFRA Bill Sent To Him

Arkansas Governor Asa Hutchinson yesterday, facing pressure from businesses in the state, asked the state legislature to recall from his desk the Religious Freedom Restoration Act that it passed on Tuesday (see prior posting) and amend it or pass a revised version of it.  AP reports that the state's largest employer, Wal-Mart, asked for the governor to veto the bill as did the governor's own son.  The legislature must act quickly since the version of the bill already formally sent to the governor becomes law automatically in five days if he does not veto it.  By last night, the state Senate passed a revised version that apparently limits the bill's use to actions in which the government is a party. The House of Representatives is expected to vote on the revised version today.

Arkansas Legislature Passes RFRA Law That Is Broader Than Indiana's

The Arkansas General Assembly today gave final passage to HB 1228, the Arkansas Religious Freedom Restoration Act (full text) and sent it to Gov. Asa Hutchinson for his signature.  The bill's passage comes as growing controversy surrounds a religious freedom bill that became law in Indiana last week. (See prior posting.)  While a number of national media are describing the Arkansas law as similar to Indiana's (Huffington Post, Slate), a close examination of the Arkansas bill reveals that in a number of ways is is significantly broader than the Indiana law.  Here are some examples:

The definitional section in the Arkansas bill defines a "person" protected by the Act as including a corporation. Arkansas, however, does not include the language in Indiana's law that limits coverage of business entities to those where the protected beliefs are held by individuals who have control and substantial ownership of the entity.

The Arkansas law requires that in order to justify a substantial burden, the state must show that it has a compelling interest "in this particular instance."  That language does not appear in the Indiana law.

The Arkansas law defines "compelling governmental interest" to mean "a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion."

The Arkansas law permits a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, to assert the violation or impending violation as a "claim or defense" even when the state is not a party to the proceeding.  The Indiana law only allows assertion of a RFRA violation against a private party as a "defense."  That is, unlike Indiana, it appears that the Arkansas law would permit a plaintiff to recover damages against a private party for a violation of religious rights by the government.  In that regard, the Arkansas bill provides that it does not create a right of action by an employee against a private employer.  Unlike Indiana, it does not similarly exclude an action by an applicant for employment or a former employee.

According to the Arkansas Democrat-Gazette, Gov. Hutcheson has in the past repeatedly said he would sign the legislation. However some business and political leaders have called for Hutchinson to veto the bill.

Lawsuit Challenges Courthouse Lawn Nativity Scene

Despite a disclaimer placed on the courthouse lawn Nativity Scene in Baxter County, Arkansas (see prior posting), this week a federal court lawsuit was filed challenging the display on Establishment Clause grounds.  The complaint (full text) in American Humanist Association v. Baxter County, Arkansas, (WD AR, filed 12/23/2014), alleges that: "Religious and specifically Christian elements overwhelmingly dominate the County’s annual Nativity Scene display." It contends that a purported 2-month lease of the property on which the display stands to the Chamber of Commerce for $1 is "a sham attempt to insulate the County from responsibility...." Last year the County refused to allow two county residents to place a Happy Solstice Banner near the Nativity Scene. AP reports on the lawsuit.

County Votes For Disclaimer On Courthouse Nativity Scene

In Baxter County, Arkansas, the Quorum Court (the equivalent of a county council) voted unanimously yesterday to add a sign containing a disclaimer to the Nativity Scene that traditionally goes up on the county courthouse lawn.  According to the Baxter Bulletin, the creche is put up and taken down by a private family on a portion of the lawn that is leased to the Chamber of Commerce for the display.  Reacting to last Christmas season's complaint from the Appignani Humanist Legal Center, the county approved the following disclaimer:

During the Holiday Season, the County of Baxter salutes liberty. Let these festive lights and times remind us that we are keepers of the flame of liberty and our legacy of freedom. Whatever your religion or beliefs, enjoy the holidays. This display is owned and erected by private citizens of Baxter County.

Arkansas, Mississippi Same-Sex Marriage Bans Invalidated

Yesterday federal district courts in two more states-- Arkansas and Mississippi-- struck down state bans on same-sex marriage.  In each case, the ruling was stayed to permit an appeal.

In Austin v. Crane, (ED AR, Nov. 25, 2014), an Arkansas federal district court held that Arkansas' state constitutional and statutory restrictions on same-sex marriage "deny consenting adult same-sex couples their fundamental right to marry," and impose unconstitutional gender classifications. Issuance of an injunction was stayed to permit a timely appeal to the 8th Circuit. AP reports on developments.

In a separate case, last May an Arkansas state trial court struck down Arkansas' same-sex marriage ban (see prior posting), and that case is currently on appeal.  In yesterday's decision, the federal court rejected arguments that it should therefore abstain.

In Campaign for Southern Equality v. Bryant, (SD MS, Nov. 25, 2014), a Mississippi federal district court held that:

Mississippi’s same-sex marriage ban deprives same-sex couples and their children of equal dignity under the law. Gay and lesbian citizens cannot be subjected to such second-class citizenship. Mississippi’s same-sex marriage ban violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The court issued a preliminary injunction, but stayed it for 14 days to permit an appeal to the 5th Circuit. The Clarion-Ledger reports.

State University Reaches Compromise With Football Team Members On Wearing Cross Decal

Inquisitr reports that Arkansas State University officials have reached a compromise with member of the school's football team-- the Red Wolves-- who want to honor their recently murdered teammate and their recently deceased equipment manager by wearing a Christian cross with the men's initials on it on team helmets this season. (See prior posting.) So long as the student athletes purchase the cross decals themselves and personally place them on their helmets, the University will not object. Liberty Institute, which had written the University (full text of letter) complaining about its original decision to disallow the decals, issued a press release praising the University's decision last Wednesday to now allow them.

Religion Becomes Issue In Arkansas Senate Race

Earlier this week, ABC News reported on the prominent place that religion has assumed in the race for U.S. Senate in Arkansas. In a television interview last week, Republican Rep. Tom Cotton, seeking to capture the Senate seat from incumbent Sen. Mark Pryor, commented on the Supreme Court's Hobby Lobby decision, saying:

It's another example of how Obamacare infringes on the liberties of all Arkansans. Barack Obama and Mark Pryor think that faith is something that only happens at 11 on Sunday mornings.

In response, in a television ad running state-wide,Pryor, holding a Bible, says:

I'm not ashamed to say that I believe in God, and I believe in His word. The Bible teaches us no one has all the answers, only God does.

Understanding The Procedural Tangle In The Arkansas Same-Sex Marriage Challenge

As lower courts strike down same-sex marriage bans in various states, and state officials scramble to stay the orders and file appeals, the procedural tangles sometimes become difficult to penetrate.  So here is an attempt to clarify where things stand procedurally in one state-- Arkansas.

On May 9, an Arkansas state trial court (the Pulaski County Circuit Court which includes the city of Little Rock) held that the state's constitutional and legislative bans on same-sex marriage violate the 14th Amendment's equal protection clause.  (See prior posting.) A number of state and county officials filed an appeal with the Arkansas Supreme Court seeking an emergency stay of the trial court's order.  In Smith v. Wright, (AR Sup. Ct., May 14, 2014), the Arkansas Supreme Court dismissed the appeal without prejudice on the ground that the trial court's order was not a final adjudication of all the claims of the parties and so could not yet be appealed.  However it also held that reading the trial court's order carefully, the trial court had not issued a ruling as to Ark. Code Ann. § 9-11-208(b), prohibiting circuit and county clerks from issuing same-sex marriage licenses.  So, according to the Supreme Court, that prohibition was still in effect.

The next day, May 15, the Pulaski County Circuit Court responded by issuing three separate orders: (1) it denied a stay of its earlier ruling (full text of order); (2) the Court issued a final order permanently enjoining both the bans on same-sex marriage and the provision prohibiting circuit and county clerks from issuing licenses to same sex couples (full text of order); and (3) the court issued an order making its May 15 ruling that covered the ban on issuing marriage licenses retroactive to May 9 by an order entering the ruling nunc pro tunc. It said that the original omission of a reference to the section on issuance of licenses was an inadvertent clerical error. (Full text of ruling.) Lyle Denniston at Scotus Blog suggests that the nunc pro tunc order serves to protect those clerks who issued licenses between May 9 and 15.

According to AP, the Pulaski County clerk resumed issuing marriage licenses to same-sex couples shortly after the trial court's new orders.  Other counties though are awaiting legal advice. And after same-sex marriages resumed in Pulaski County, the Arkansas attorney general's office returned to the state Supreme Court and again asked for a stay of the trial court's order, pending appeal. [Thanks to Tom Rutledge for the lead.]

State Court Invalidates Arkansas Ban on Same-Sex Marriage

In Wright v. State of Arkansas, (AR Cir. Ct., May 9, 2014), an Arkansas state trial court held that Arkansas' state constitutional and legislative bans on same-sex marriage violate the 14th Amendment's equal protection clause. The suit was brought by 12 same-sex couples seeking to marry in Arkansas and 8 couples who have married in states allowing same-sex marriage who want their marriages recognized in Arkansas.  In striking down the state ban, the court added:

It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.

According to USA Today, while state Attorney General Dustin McDaniel personally supports same-sex marriage, his office said after the ruling:

in keeping with the Attorney General's obligation to defend the state constitution, we will appeal. We will request that Judge Piazza issue a stay of his ruling so as not to create confusion or uncertainty about the law while the Supreme Court considers the matter.

  [Thanks to Alliance Alert for the lead.]