Of the hundreds of bills that went to Gov. Bill Haslam’s desk during this year’s legislative session, he had the hardest time signing the one that nullified Nashville’s new gay rights ordinance, according to one of his top aides.
Mark Cate, a senior adviser, told the Kiwanis Club in his hometown of Maryville this month that Haslam “didn’t oppose” Nashville’s ordinance “from a philosophical perspective.”
The governor has said businesses should adopt anti-gay bias employment policies — but only if they are acting voluntarily. The ordinance, on the other hand, required companies to adopt such policies as a condition for doing business with Metro government.
“He just believes government should not be drilling down and telling small business what to do,” Cate said of Haslam.
To justify one of the most controversial laws of the 2011 session, that’s exactly the walk-the-tightrope case that Tennessee Republicans have made repeatedly. What they did was by no means anti-gay, they say. Instead, it was pro-business — an attempt to prevent confusing and burdensome new regulations from popping up all over the state, for the state law not only overturned Nashville’s ordinance but prohibited any city from adopting such laws in the future anywhere in Tennessee. To underline what they claim as their true purpose, they titled the law the “Equal Access to Intrastate Commerce Act.”
But can Haslam and the Republicans convince the courts that bigotry isn’t the real motivation for the law? That’s the issue in a lawsuit filed against the governor last week by gay rights activists and three Metro Council members: Erik Cole, Mike Jameson and Erica Gilmore.
Citing the U.S. Supreme Court’s landmark 1996 decision in Romer v. Evans, the plaintiffs contend the state law violates the Constitution’s equal protection clause because its only purpose is to deny gay people the right to seek legal protection from discrimination.
In Romer, the court tossed out a Colorado state constitutional amendment barring local governments there from outlawing discrimination based on sexual orientation. Known as Amendment 2, the invalidated measure was enacted in a 1992 ballot initiative by 53 percent of Colorado voters. Justice Anthony Kennedy wrote for the 6-3 majority:
“We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. … We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do.”
Laws may disadvantage specific groups but only if they advance what’s deemed a legitimate government interest. Depriving gay people of their rights failed to advance such a legitimate interest, the court ruled.
“Romer v Evans is indeed on point,” said Steven John Mulroy, a professor at the University of Memphis law school. “It stands for the proposition that a state law provision can’t exclude one group from potential anti-discrimination protection by local government because of animus against that group.”
But as Mulroy and other constitutional law experts point out, there is one key difference between the Tennessee and Colorado cases: Colorado specifically prohibited municipalities from outlawing discrimination on the basis of sexual orientation; Tennessee’s law never mentions homosexuality. Instead, it prohibits cities from extending protections against discrimination to categories not mentioned in Tennessee’s statewide civil rights law. That law, while barring discrimination on the basis of race, creed, color, religion, sex, age or national origin, does not include sexual orientation or gender identity.
So to win their lawsuit, Tennessee’s plaintiffs have a higher burden of proof than Colorado’s. First, they must show legislators were deliberately aiming to deny the rights of gay people despite the fact that — superficially at least — the law doesn’t purport to do that.
To that end, the plaintiffs portray the whole legislative debate as one big political farce, with the law’s proponents saying one thing for public consumption and another behind the scenes. From the beginning, according to the lawsuit, it was clear that stifling gay rights was the goal. Citing media reports, the plaintiffs lay out their case: The law’s chief instigators were not businesses hoping to kill a new regulation but members of the anti-gay, conservative Christian Family Action Council. In January, as the Metro Council was beginning to consider its ordinance, the Family Action Council’s board chairman, William Morgan, called an “urgent meeting” to plot strategy to combat the measure.
“The meeting will lay out the wide-reaching impact of this ordinance, what can be done to defeat it, and the next item on the homosexual agenda if this passes (which is to require all businesses domiciled in Davidson County to adopt these same policies),” Morgan wrote in an email to potential attendees.
Literature handed out at the meeting decried the “immorality” of homosexuality. According to media reports, one topic of discussion was “the advantage of framing the debate as a business issue rather than a moral, Christian one.”
After the meeting, David Shelley, who acts as the “Truth Project” trainer for the Family Action Council, told a reporter, “Homosexual behavior is not only morally wrong, it’s abhorrent, it’s unnatural. It prevents the species from reproducing and continuing, and it’s certainly not something that should be given special protection by law.”
To pressure state lawmakers to vote for its bill, the Family Action Council produced an Internet video suggesting that Nashville’s ordinance would open public restrooms to child molesters. In the video, a sinister man in dark glasses furtively follows a young girl into a women’s bathroom at a playground.
“Do gender differences matter to you?” the video asked.
When the legislature adopted the bill, the Family Action Council declared it to be a “Victory for the FAMILY!”
Legislators “abused their power” by passing a law “based on disapproval of gay and transgender people,” said Abby Rubenfeld, the lawsuit’s lead attorney.
“This law is contrary to core Tennessee values,” she said.
But in addition to showing a discriminatory purpose behind the state law, the plaintiffs also must prove a second point.
“They also have to show that there’s no legitimate reason for the law,” said Suzanna Sherry, a Vanderbilt University constitutional law professor. “Just because it was passed with discriminatory intent doesn’t necessarily mean that it isn’t justified (or at least justifiable) by legitimate reasons, such as the burden it put on businesses. The plaintiffs will have to show that having cities pass their own anti-discrimination ordinances isn’t burdensome on businesses. I’m not sure how that will play out.”
The plaintiffs say they believe they can meet this test by pointing to the many businesses that publicly opposed the state law as the governor was considering whether to sign it into law. Among them: Nissan, Alcoa, AT&T, Whirlpool, KPMG, United Health and Comcast. On the day Haslam signed the bill, the Tennessee Chamber of Commerce withdrew its support for the measure.
“Because [the bill] has turned into a debate on diversity and inclusiveness — principles which we support — we are now officially opposing this legislation in its present form,” the chamber said in a statement.
According to Chris Sanders of the Tennessee Equality Project, one of the plaintiffs, “The business argument has completely collapsed in light of the Tennessee Chamber of Commerce’s statement. This was never about business.”
Sanders said the state law “is an attempt by our legislature to freeze the state of Tennessee in a block of ice. But this lawsuit is going to bring the heat that’s going to melt it, and we are going to see legal protections [for gay people] spread throughout this state.”