State legislation to nullify Nashville’s new anti-gay bias ordinance is headed to the House floor for a vote as soon as this week, and both sides agree it’s almost a foregone conclusion that it will pass.
Once the Senate adopts its own version, the legislature not only will repeal Nashville’s ordinance, but also ban any such laws in the future anywhere else in Tennessee.
The whole debate has taken on an Alice in Wonderland quality. Nashville’s progressives still were congratulating themselves for pushing the ordinance through the Metro Council when Republicans in the legislature spoiled the celebration.
The day after the council’s final vote, they started moving their bill through the legislature. They insist it’s a pro-jobs initiative — not a heavy-handed attempt to stifle gay rights. Meanwhile, conservative Christians lobby for it by claiming bizarrely that Nashville is opening the way for child molestation in public restrooms.
In response, gay rights advocates and their political allies upbraid Republicans as the moral equivalents of the segregationists of the Civil Rights era. Behind the scenes, the American Civil Liberties Union and others are discussing whether to go to court to challenge the constitutionality of the proposed state law, and they say there are some legal grounds for believing they can succeed.
“This is just purely a right-wing homophobic thing they’ve got going on here,” Rep. Mike Turner, D-Nashville, said of Republicans. “If the gay lifestyle is wrong, that’s between them and the Lord. If the city of Nashville wants to ban gay discrimination, that’s their business. It’s not the state’s business to tell the city not to do it.”
Even before the Metro Council voted 21-15 for the ordinance this month — banning discrimination against gay, lesbian and transgender people by companies doing business with the city — the Christian conservative Tennessee Family Action Council was promoting state legislation to stop it. The council’s leader, David Fowler, worked up two bills, and Rep. Glen Casada, R-College Grove, introduced them.
One would have stopped cities not only from banning gay discrimination, but also from enacting their own policies on minimum wages, health care and family leave. It was a social conservative’s dream act, stamping out a litany of liberal policies before they even could be considered by any Tennessee city.
It apparently was a bridge too far even for some conservatives in the legislature, two of whom helped defeat it by voting against it in a House subcommittee in March.
After that, Fowler decided to switch to his second, more narrowly drawn bill. That one 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.
The Family Action Council put heavy pressure on lawmakers to support this bill. Targeting a Shelby County Republican who voted no on the first bill, the council sent a video to supporters suggesting that ordinances like Nashville’s somehow would open women’s restrooms to child molesters.
In the video, a little girl walks into a women’s restroom at a public park and is followed by a sinister looking man.
“Will this be the future for Shelby County?” the video asks. “Do gender differences matter to you? They won’t if Memphis or Shelby County mandates ‘gender expression’ policies on private employers. Is that the kind of Tennessee you want?”
Since then, conservative Christians have encountered no more resistance from Republicans in House committees. Fowler said narrowing his proposal to the gay issue was the key.
“The broader bill created a lot of confusion as to what all it was doing,” he said after one House victory. “Anytime you have a bill with three or four moving pieces and parts, it becomes harder for people to understand. So we narrowed it down to one issue. It made it simpler. People understood exactly what it did and what it didn’t do.”
Fowler defended his organization’s video, saying it did not intend to paint gays or transgender people as child molesters. If Nashville’s ordinance were allowed to stand, “you don’t know whether a person’s in [the women’s restroom] lawfully or not in there lawfully,” he said.
“As we become a genderless society,” he added, “that’s the kind of thing that’s happening. As we become more insensitive to gender differences, it becomes easy for real sexual predators to take advantage of that situation in that kind of environment and climate. It’s not any kind of statement that those who are transgender or cross-dress are sexual predators. It’s that sexual predators will know how to take advantage of those opportunities afforded by law when the distinctions begin to get blurred with respect to who’s rightfully or not in a restroom.”
Supporters of Nashville’s ordinance think they have a shot at overturning the state legislation in court. They point to a 1996 Supreme Court ruling — Romer v. Evans — that threw out Colorado’s anti-gay constitutional amendment. It would have repealed anti-gay discrimination ordinances in Aspen, Boulder and Denver, and prohibited the passage of any future such ordinances.
The court ruled the amendment violated the Constitution’s equal protection clause because it singled out gay people for denial of the right to seek legal protection from discrimination. 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.
What the Tennessee legislature is doing is different in only one respect — lawmakers deny they are singling out gay people but instead insist they merely are trying to prevent burdensome and confusing new business regulations from popping up around the state.
“I think a court decision could go either way,” said Suzanna Sherry, a Vanderbilt University Law School professor of constitutional law.
Sherry pointed out that Colorado specifically prohibited municipalities from outlawing discrimination on the basis of sexual orientation.
“Essentially,” she said, “the state law painted a target on gays, inviting discrimination against them.”
Tennessee’s proposed state law would prohibit municipalities only from outlawing any kind of discrimination that’s not already prohibited by state law. “It thus does not single out gays,” Sherry said.
To win their case, gay rights advocates would have to prove that Tennessee’s legislative intent and timing demonstrates the purpose is the same as Colorado’s constitutional amendment, she said.
Indeed, when they discuss Casada’s bill, Republican lawmakers seem to be reading from a script almost as if they are trying to create an indisputable record for a future court case. Their arguments that Nashville’s ordinance would hurt the economy — denounced as disingenuous and ridiculous by gay rights advocates — may be an intentional strategy to withstand a court challenge.
“We’re talking about companies that come into this state, and they want to have an equal playing field all across the state and have some predictability so that they would come to our state rather than some state that has a mishmash of different laws and business environment,” said House Republican leader Gerald McCormick of Chattanooga. “That’s what it’s about. It’s about economic development. It’s not about gay people.”