Arkansas Gov. Hutchinson allowed SB202 to become law without his signature, nullifying Fayetteville's LGBT ordinance

On February 24, 2015, Arkansas Gov. Asa Hutchinson allowed SB202, the "Intrastate Commerce Improvement Act," to become Act 137 without his signature, barring counties, municipalities, and other political subdivisions from adopting or enforcing any ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.

The Arkansas Senate passed the bill 24-8 on February 9, 2015, and the House passed it 57-20 on February 13, 2015. Senate sponsor Sen. Bart Hester introduced the measure after Fayetteville voters narrowly repealed a local LGBT-inclusive nondiscrimination ordinance in December 2014 and city officials signaled they would try again; Hester told BuzzFeed News he was "infuriated that cities were attempting to expand civil rights laws for LGBT people." House sponsor Rep. Bob Ballinger carried the bill through that chamber. Hutchinson said in a statement he was "allowing the bill to become law" despite "concerns about the loss of local control," neither signing nor vetoing it.

The law's practical effect was to preempt any renewed Fayetteville ordinance and similar nondiscrimination measures under consideration in Eureka Springs and other Arkansas municipalities, freezing local civil-rights protection at the state's existing floor statewide. Litigation over the law (Protect Fayetteville / Arkansas v. Fayetteville) followed after Fayetteville re-enacted a nondiscrimination ordinance later in 2015; as of the ACLU of Arkansas's most recent case update, no court has ruled on Act 137's underlying constitutionality.

Updates

2017-02-23 — Arkansas Supreme Court ruled Fayetteville ordinance conflicted with Act 137 [4]

The Arkansas Supreme Court reversed a circuit court ruling that had upheld Fayetteville's ordinance, holding in Protect Fayetteville v. City of Fayetteville that the ordinance conflicted with Act 137's uniformity requirement and could not stand, and remanded the case for further proceedings.

2019-01-31 — Arkansas Supreme Court dismissed remaining Fayetteville ordinance litigation [5]

On remand, the Arkansas Supreme Court again ruled for the state, holding legislative and executive privilege shielded the General Assembly and governor's office from discovery into Act 137's motivations, and dismissed the case as moot. The ruling permanently ended enforcement of Fayetteville's ordinance without resolving whether Act 137 itself was unconstitutionally enacted to target LGBT residents.