City crafts non-discrimination resolution

A non-discrimination resolution is set to go before Whitefish City Council at its next meeting.

The resolution is in response to a Nov. 17 rally organized by Love Lives Here in the Flathead Valley where citizens asked city council to create a “no hate” ordinance or pass some type of anti-discrimination legislation for the city.

City Manager Chuck Stearns told the Pilot it’s unlikely the city can consider a “no hate” law due to First Amendment protections.

“No hate tends to deal with speech, which is protected under the Constitution,” Stearns said.

Non-discrimination ordinances and resolutions, Stearns explained, “extend human rights protections to classes that aren’t already protected.”

The proposed resolution declares the city’s “support of Whitefish community values that recognize and celebrate the dignity, diversity, and inclusion of all of its inhabitants and visitors, and protect and safeguard the right and opportunity of all persons to exercise their civil rights, including the rights of free speech, freedom of assembly, and freedom from discrimination.”

The city notes the resolution isn’t intended to alter other “rights, protections, or privileges secured by state or federal law.”

In a memo to council, city attorney Mary VanBuskirk said “while the city retains authority to enact laws on behalf of the health, safety and general welfare of its citizens, its authority to regulate is not absolute.”

VanBuskirk said that if the city enacts a no-hate ordinance focused only on prohibiting certain speech or expression believed to be hateful, the city would be violating First Amendment rights to free speech.

Beyond looking at the resolution, Stearns said council will have a discussion about the possibility of crafting a non-discrimination ordinance.

VanBuskirk said state and federal laws prohibit discrimination on the bases of several categories. One area of non-discrimination law that has not been addressed is the protection of citizens from discrimination based on sexual orientation and gender identity, she noted.

A handful of Montana cities have passed similar non-discrimination laws.

Missoula adopted a non-discrimination law in April of 2010. Helena adopted a similar non-discrimination law in 2012, and Butte followed suit in February of this year.

Bozeman adopted a non-discrimination ordinance in June, but five Bozeman residents have challenged the law with a lawsuit against the city filed in Gallatin County District Court. They say the ordinance goes beyond the city’s authority and preempts state law.

The Bozeman City Commission has asked the lawsuit be dismissed.

The city of Dillon rejected a similar non-discrimination ordinance in September, saying the law overstepped city authority.

Billings also rejected a non-discrimination ordinance in August after its mayor broke a tie vote.

Whitefish City Council next meets Dec. 1 at 7:10 p.m. at City Hall.