Early voting for the Sept. 8 special election for a new civil rights ordinance began Tuesday.

Registered voters can cast their ballots for or against The Uniform Civil Rights Protection, widely known as Ordinance 5781, at the Fayetteville Washington County Courthouse between 8 a.m. and 4:30 p.m. Tuesday, Sept. 1 through Friday, Sept. 4. For any questions or concerns, you can call the County Clerk at (479) 444-1711 for more information.

If you won’t be in town, you can request an absentee ballot. It can be downloaded from www.sos.arkansas.gov and mailed to Becky Lewallen at the address stated above. Also, if you are unable to early vote for whatever reason, you can vote at any polling place on election day, Sept. 8, as long as you are a registered Fayetteville voter.

On election day, voters can find out where their polling places are at www.voterview.ar-nova.org/VoterView/Home.do and clicking on “Registration Information.”

WHAT IS ORDINANCE 5781?

In a nutshell, the ordinance specifically provides three areas of protection for the LGBT community in employment, housing and business. In effect, a citizen could not be denied or removed from housing, fired from their job or refused business based on their sexual orientation or gender identity. Some claim that the ordinance provides “special rights” to the LGBT community, which is false, it only includes them in the state’s Civil Rights act. At least, within the Fayetteville city limits.

Why was it drafted in the first place? Well, there are indeed federal and state protections already in place through the state Civil Rights Act and Fair Housing acts that protect citizens from discrimination on the basis of race, color, religion, sex and national origin. However, these laws came about during the 1960s, and do not mention protections on the basis of sexual orientation or sex identification.

Within our current laws, a private landlord can refuse to rent a home to someone because they are gay. Also, a restaurant or business owner could refuse service to a transgender person.

This is where Ordinance 5781 comes in. The law seeks to make instances like those two examples illegal, and provide legal recourse to the citizens who feel they have been discriminated against.

The legal punishment under the ordinance for a person who is found guilty of discrimination is a city penalty — not a misdemeanor or felony. The fine for the penalty would amount up to $100. In order to determine whether or not claims of discrimination are legitimate, a Civil Rights Commission group of citizens with relevant experience would be formed to review complaints of alleged discrimination. Unlike Ordinance 119, the city attorney will not serve as the administrator of complaints.

Pretty much all religious institutions, Churches, religious schools and daycare facilities would be exempt from the new law.

Some may ask, doesn’t Senate Bill 202 prohibit municipalities from creating protected classes that aren’t protected at the state level?

Sexual orientation and gender identity are protected under state-wide anti-bullying laws, so this ordinance seeks to extend non-discrimination protections to those existing classes.

The Uniform Civil Rights Protection Ordinance was drafted by alderwoman Adella Gray and alderman Matthew Petty earlier this year after meeting with several business owners, clergy and Fayetteville citizens. The ordinance came about in the aftermath of Ordinance 119 being repealed in December 2014. Gray said many who she spoke with agreed with the vision of Ordinance 119, but weren’t sure if the bill’s language was a slam dunk.

While similar in nature to Ordinance 5781, Ordinance 119 was approved by aldermen and then later repealed in 2014. Many considered it to be too convoluted and vague in some of the language regarding who the law would provide protections for and how. It drew national attention when Springdale reality TV star Michelle Duggar sent out a pre-recorded robocall message claiming the ordinance would allow for sexual predators to get to children and women in bathrooms. Such claims became one of the main arguments for the opposition, even though state laws clearly already prohibited such behavior with or without the ordinance. Most notably, the Fayetteville Chamber of Commerce condemned it.

However, the new ordinance is supported by the Fayetteville Chamber of Commerce, more than 400 local businesses, 22 local faith leaders and is endorsed by the Northwest Arkansas Democrat Gazette, according to forfayetteville.com.

Flash forward to June, the Fayetteville City Council voted to approve Ordinance 5781. Even though the ordinance was passed in the City Council, it was elected to put the ordinance up to a special election “out of respect” for voters against the law who would likely collect enough signatures again to put it to a special election anyway, Petty said at the June meeting.

So, now here we are approaching the Sept. 8 election day. Last year the vote came down to about 500 votes, so it’s likely to be a close call again. If voted to be enacted, the law will go into effect after 60 days.

ARGUMENTS

– Dangers to local businesses

Those against the ordinance fear the new law could open the door to any disgruntled employee making complaints about their boss that they were discriminated against, thus causing the business to get a bad reputation before being proven innocent.

However, no charges will be administered until a commission of several people have reviewed and determined that there was a clear, evidence-supported instance of intentional discrimination. According to the ordinance, the commission will consist of two representatives of the business community; two owners or managers of rental property; one representative with experience in Human Resources or employment law; two citizens at large, at least one of whom identifies as gay, lesbian, bisexual, or transgender.

The members will be appointed by the City Council, each for a term of three years. Appointments shall be staggered so that each year either two or three members’ terms shall be available for appointment by the nominating committee.

If appropriate, members of the Civil Rights Commission may be removed from office by the City Council for cause upon written charges and after a public hearing. No cases are determined guilty until proven innocent.

Each complaint will enter into a mediation period where both the complainant and the accused will be heard. If the matter can be resolved in the mediation period, no charges will be applied and no further action will be taken.

– Dangers to women and children

According to Protect Fayetteville’s website, the proposed ordinance will “demand” businesses to allow men identifying as women to enter female bathrooms and other private areas.

Yet, as stated earlier in this article, the ordinance does not force any establishment to create gender-blind restrooms. A city law does not have the ability or power to trump a state law, and any foul play in public restrooms, locker rooms, showers, etc. is strictly prohibited by state law.

– Dangers to people of faith

Another argument posed by the members of Protect Fayetteville is that even though churches and other religious institutions are exempt from the confines of Ordinance 5781, it still does not protect the religious beliefs of individuals.

“This law coerces individuals to compromise their conscience and religious beliefs by forcing participation in same-sex events against their will,” the statement reads. “This ordinance allows people of faith to be targeted and persecuted for their beliefs.”

The ordinance has no laws in place seeking out individuals who do not accept or believe in LGBT lifestyles. The only time this ordinance will go into effect will be when a complainant provides compelling evidence of intentional discrimination. Only then will the Civil Rights Commission take action if a consensus is made.

Also, 22 local religious leaders have been public about their support for Ordinance 5781.

Recent Events

The Duggars, who have been publicly vocal about their stance against such ordinances and helped bankroll a lot of the opposition’s operations have been under fire in the press for more than one scandal involving their son, Josh Duggar — previously the executive director for the conservative lobbyist group Family Research Council.

Duggar resigned from the FRC when it became public that he had sexually abused five underage children, including some of his sisters.

When the “affair-seeking” website ashleymadison.com had their user account information hacked and leaked to the Internet, Duggar’s name was on the list as an active user.

Representatives of Protect Fayetteville filed a lawsuit Monday challenging the validity of the ordinance, with the intention to halt the election. The basis comes from the state Senate Bill 202, which prohibits municipalities from creating protected classes not recognized at the state level.

Fayetteville City Attorney Kit Williams has said despite the new legislation, he doesn’t believe the new ordinance conflicts with state law. Referencing Little Rock City Attorney Tom Carpenter, Carpenter cited portions of Title 6, Chapter 18 of Arkansas Code, which prohibit bullying in public schools on the basis of several classes, including sexual orientation and gender identity.

Thus, Carpenter opined that because those protected classes already exist, a municipality could legally adopt nondiscrimination policies based on those classes.

A few weeks ago, Protect Fayetteville held a support rally where the public was invited to attend to hear about the concerns the opposition had to the ordinance. At the rally, two Oregon bakery owners, Aaron and Melissa Klein, came to speak about their involvement in a discrimination case. The couple had denied making a cake for a lesbian wedding. The couple then filed a complaint against the bakery for denying them service and telling them they were “an abomination unto God.” The judge ruled in favor of the lesbian couple, and granted them $135,000 in reparations. For Fayetteville supporters were denied entry to the event.