Does Arkansas's Act 137 of 2015 invalidate a pre-Act local ordinance that creates a protected classification not contained in state law?

Plain-English summary

Representative Mickey Gates asked the AG a narrow but high-stakes question: if a county, municipality, or other political subdivision of the state adopted, before Act 137 of 2015 took effect, an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law, does Act 137 prohibit the political subdivision from enforcing it?

The AG's answer was yes. Act 137 of 2015 is the Arkansas statute commonly known as the "Intrastate Commerce Improvement Act," and Section 1 said: "A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law." The AG read that "shall not enforce" language as covering pre-existing ordinances as well as new ones. Because municipalities are creatures of the legislature with only the powers granted by statute or the constitution (citing Ark. Const. art. 12, § 4 and Jones v. American Home Life Ins. Co., City of Fort Smith v. Housing Authority, and Nahlen v. Woods), when a state and local law conflict, the local law yields.

The opinion was carefully limited. The AG said the question was not what counts as a "protected classification" or "a basis not contained in state law," and not whether any specific local ordinance actually conflicts with Act 137. The question was only the in-principle one: assuming there is a conflict, can the local ordinance still be enforced? The AG said no. Whether any particular ordinance in any particular Arkansas city actually conflicts with Act 137 is a separate, fact-specific question the opinion did not decide.

Act 137 of 2015 was widely understood at the time to be aimed at SOGI (sexual orientation and gender identity) ordinances adopted by Little Rock, Eureka Springs, Fayetteville, Hot Springs, and Pulaski County, none of which were protected under state nondiscrimination law. A separate AG opinion (Op. 2015-088) addressed the substantive scope of Act 137's reach over those specific ordinances.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is Act 137 of 2015?

Arkansas Act 137 of 2015, often called the Intrastate Commerce Improvement Act, prohibits political subdivisions from creating protected classifications or banning discrimination on bases not contained in state law. The Act was a state-preemption response to the wave of city-level SOGI nondiscrimination ordinances adopted in 2014-2015.

Does Act 137 only apply to ordinances passed after it took effect?

No, per this opinion. The AG read "shall not enforce" as covering ordinances regardless of when they were adopted. A pre-Act ordinance that conflicts with Act 137 cannot be enforced after the Act took effect.

Why don't cities have a right to keep enforcing their own pre-existing ordinances?

Because in Arkansas, municipalities are creatures of the legislature. They have only the powers given to them by statute or by the constitution (Ark. Const. art. 12, § 4 and a line of Arkansas Supreme Court cases). When the legislature withdraws a power, the city can no longer exercise it, regardless of how long it has been on the books.

Did this opinion decide whether Little Rock's, Fayetteville's, or any other city's SOGI ordinance specifically conflicted with Act 137?

No. The opinion is explicit that it does not address what a "protected classification" is, what "a basis not contained in state law" means, or whether any particular local rule actually conflicts. The companion opinion 2015-088 dealt with the specific city ordinances.

Is "the basis not contained in state law" understood broadly or narrowly?

That question wasn't decided here, and it has been one of the central contested issues in Act 137 litigation and commentary. The opinion sidestepped it intentionally.

Background and statutory framework

Act 137 of 2015 was Section 1 of an act prohibiting local protected classifications. The relevant operative sentence was: "A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law." The opinion emphasized the "enforce" language as covering pre-existing measures.

The underlying state-supremacy principle came from Ark. Const. art. 12, § 4 and from a settled line of cases holding that municipalities are creatures of the legislature and have only the powers expressly conferred (Jones v. American Home Life Ins. Co., City of Fort Smith v. Housing Authority, Nahlen v. Woods, and McQuillin's Municipal Corporations treatise).

The opinion came shortly after Act 137's enactment, as part of a wave of legislative interpretation following passage. Op. 2015-088, also written that year, dealt with the actual preemption of specific city SOGI ordinances.

Citations

• Acts 2015, No. 137
• Ark. Const. art. 12, § 4
• Jones v. American Home Life Ins. Co., 293 Ark. 330, 738 S.W.2d 387 (1987)
• City of Fort Smith v. Housing Authority of the City of Fort Smith, 256 Ark. 254, 506 S.W.2d 534 (1974)
• Nahlen v. Woods, 255 Ark. 974, 504 S.W.2d 749 (1974)
• 5 McQuillin Mun. Corp. § 15:19 (3d ed.)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2015-054
July 1, 2015

The Honorable Mickey Gates
State Representative
377 North Highway 7
Hot Springs, Arkansas 71901

Dear Representative Gates,

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

You have asked for my opinion on the following question:

If a county, municipality, or other political subdivision of the state — prior to Act 137 of 2015 going into effect — adopts an ordinance, resolution, rule or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law, does Act 137 prohibit the county, municipality, or other political subdivision from enforcing it?

RESPONSE

For the sake of clarity, I want to highlight the question I have been asked to address here. The question is not about what is meant by the phrases "protected classification" or "on a basis not contained in state law." Nor is the question about whether any particular rule or ordinance of a political subdivision conflicts with Act 137 of 2015. Rather, the question is whether a local ordinance or rule can be enforced when (1) it was enacted before Act 137 and (2) it conflicts with Act 137. The answer to this question is "no."

Section 1 of Act 137 prohibits the enforcement of a conflicting local rule or law: "A county, municipality, or other political subdivision of the state shall not … enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law." (Emphasis added.) When a state and a local law conflict, the latter yields. Therefore, if a political subdivision enacted an ordinance, rule, or resolution that conflicted with Act 137, then the local law could not be enforced.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,

Leslie Rutledge
Attorney General
LR/RO:cyh

[Footnote: See generally Ark. Const, art. 12, § 4. Municipalities are creatures of the legislature and, as such, have only the power bestowed upon them by statute or the Arkansas Constitution. Jones v. American Home Life Ins. Co., 293 Ark. 330, 738 S.W.2d 387 (1987). City of Fort Smith v. Housing Authority of the City of Fort Smith, 256 Ark. 254, 506 S.W.2d 534 (1974); Nahlen v. Woods, 255 Ark. 974, 504 S.W.2d 749 (1974); 5 McQuillin Mun. Corp. § 15:19 (3d ed.).]