Dr. Jillian T. Weiss

Tennessee Bill to Ban Local LGBT Non-Discrimination Laws - Is It Constitutional?

Filed By Dr. Jillian T. Weiss | May 16, 2011 12:00 PM | comments

Filed in: Politics
Tags: anti-discrimination, nondiscrimination, Romer v. Evans, SB 632, Tennessee

Tennessee Senate Bill 632 would strike down local legal protections from discrimination for LGBT Tennesseans, and would make it impossible to pass such protections in the future.burning_flag.jpg It recently passed the Senate State and Local Government Committee by a vote of 6-3, and is expected to be voted on by the full Senate soon. It sailed through the House of Representatives (as HB 600) last month by a vote of 73-24. What's that smell? I think it's the Constitution burning.

The United States Supreme Court ruled a similar ban unconstitutional in 1996 in the case of Romer v. Evans. There are, however, some differences between the Tennessee bill and the facts of the Romer case.

Can this bill be squared with the United States Constitution?

I think not.

According to a press release from the Transgender Legal Defense and Education Fund:

On April 5, 2011, the Nashville and Davidson County Metropolitan Council passed an anti-discrimination ordinance which bars the Nashville government from doing business with any entity that does not prohibit discrimination in employment against LGBT workers. Mayor Karl Dean signed it into law three days later. SB 632 was immediately rushed through the Tennessee House of Representatives by opponents of Nashville's anti-discrimination ordinance. Their goal was to strike down Nashville's ordinance and ensure that no city or town in Tennessee could ever enact a law protecting LGBT Tennesseans from discrimination again.

The Text of SB 632

SB 632 is entitled, incongruously enough, "The Equal Access to Intrastate Commerce Act." This appears to be a reference to the idea that a state has the constitutional power to control commerce within its own borders. True enough, but that doesn't give the state the right to discriminate. The bill's text reads, in pertinent part:

No local government shall by ordinance, resolution, or any other means impose on or make applicable to any person an anti- discrimination practice, standard, definition, or provision that shall deviate from, modify, supplement, add to, change, or vary in any manner from:

(A) The definition of "discriminatory practices" in § 4-21-102 or deviate from, modify, supplement, add to, change, or vary any term used in such definition and also as defined in such section; or

(B) Other types of discrimination recognized by state law but only to the extent recognized by the state.

Thus, the bill prevents any anti-discrimination ordinance different from Tennessee statute § 4-21-102. What is the definition of "discriminatory practices" in § 4-21-102?

"Discriminatory practices" means any direct or indirect act or practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, or any other act or practice of differentiation or preference in the treatment of a person or persons because of race, creed, color, religion, sex, age or national origin;

Thus, there can be no local ordinances prohibiting discrimination based on disability, or familial status, or veteran status, or anything else.

The Effect On Other Protected Categories, Like People With Disabilities

Are there ordinances in Tennessee based on disability, familial status and other grounds? Why, yes. Take, for example, the Memphis Fair Housing Law -- that protects people from housing discrimination based on familial status, source of income, or handicap/disability. Well, not any more if SB 632 is passed.

And what about the local law that prohibits discrimination against people who report violations of the minimum wage law? No more.

These are just two examples of the far-reaching effect of this bill.

Now, I know it may come as a shock, but disability discrimination is prohibited by Federal law. Tennessee can not invalidate federal law. There's something about that in the U.S. Constitution.

The Intent of the Law: No Promo Homo, And Romer v. Evans

More importantly, the intent of this law is to invalidate the amendment of the Nashville anti-discrimination ordinance to include sexual orientation and gender identity.

In 1996, the U.S. Supreme Court heard a case involving a Colorado ballot initiative amending the Colorado Constitution "precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their 'homosexual, lesbian, or bisexual orientation, conduct, practices or relationships.'

The Tennessee ordinance doesn't explicitly or exclusively prohibit local ordinances based on sexual orientation or gender identity. Clearly, some bright midnight-oil-burning young lawyer thinks that's a distinction that will make a difference. But it is not. The law is clearly in response to protection of sexual orientation and gender identity, as noted in the press release above. We have here the same problem as that found in Romer, wherein the Court noted:

What gave rise to the statewide controversy was the protection the ordinances afforded to persons discriminated against by reason of their sexual orientation.
(And, in the case of the Nashville ordinance, gender identity discrimination is also prohibited.)

As the U.S. Supreme Court stated in the Romer opinion:

The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.

Amendment 2 fails, indeed defies, even this conventional inquiry...[I]ts sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests. (citations omitted)

In other words, the key issue in terms of the constitutionality of SB 632 is whether its denial of rights to any groups outside of the approved state list has a rational relation to some legitimate state interest. What state interest is affected? I could not find any official legislative history on the bill, or statement of purpose, but its title seems to provide an ostensible purpose. The bill seeks to provide equal access to intrastate commerce, meaning that Tennessee firms should not be blocked by the city from bidding on city contracts because of their discrimination against gay, lesbian, bisexual or transgender people, or, for that matter, people with disabilities or any other people not found in the approved state list. But SB 632 doesn't stop there. SB 632 makes no mention of intrastate commerce in its text, nor does it define it. It simply prohibits all non-discrimination ordinances of any kind listing any group not found in the state-approved list.

Is Justice Blind?

And while Lady Justice may be blind, the court's aren't. Because the bill was written in specific response to the addition by Nashville of sexual orientation and gender identity, it is that addition against which SB 632 must be measured. In a case involving religious discrimination, for example, the City of Hialeah, Florida, passed an ordinance prohibiting animal sacrifice. While the text of the law itself did not contain any reference to any religion, the Court found that the law was targeted against the Santeria religion.

We reject the contention advanced by the city that our inquiry must end with the text of the laws at issue. Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause "forbids subtle departures from neutrality," and "covert suppression of particular religious beliefs.. Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked, as well as overt. (citations omitted)

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) Just as in the case of a religion targeted by a supposedly neutral ordinance, protected categories of people targeted by Tennessee through the use of a supposed neutral ordinance will also violate the Constitution.

More Evidence of Anti-LGBT Intent

Tennessee is in the Sixth Federal Circuit, wherein the United States Court of Appeals for the Sixth Circuit has declared that sex stereotyping, as prohibited by the federal Civil Rights Act of 1964, also prohibits discrimination against a person based on their transsexual status. That's the Smith v, City of Salem case (6th Circuit, 2004). Thus, discrimination against transsexual and transgender people in Tennessee is already prohibited.

They have a workaround all set for the Smith case, though. However, that workaround will backfire on them, because it demonstrates that, far from a neutral law, it is specifically targeted against transsexual and transgender people. SB 632 contains the following provision:

Tennessee Code Annotated, Section 4-21-102, is amended by adding the following language as a new, appropriately designated subdivision:

"Sex" means and refers only to the designation of an individual person as male or female as indicated on the individual's birth certificate.

Thus, the very text of SB 632 reveals that it is not a neutral law, but is, in fact, targeted against groups that are already protected from discrimination, namely transsexual and transgender individuals.

This law is clearly unconstitutional.

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Thank you so much for this, Dr. Weiss. The progress on this bill while the "Don't Say Gay" bill gets delayed is really concerning me as a Tennessean. This one is just as dangerous. This bill is nicknamed the "Special Access to Discriminate Act" by the Tennessee Equality Project.

and it has been a right wing point of emphasis for years to pass laws to neuter or kill urban areas abilities to enact civil rights laws in their jurisdictions.

Yes, Monica, that's the whole "special rights" argument. They don't want anyone having any right to complain about the lousy treatment accorded to them by the good old boys.

When in fact the ones *demanding* special rights have always been bigots hiding behind religion and the bible in order to enshrine their bigotry into secular law!

Thanks, Jillian, for your wonderfully cogent analysis. Like Colorado Amendment 2, this Tennessee bill doesn't stop at denying specific rights to classes of marginalized people, it denies them the right to ask their elected representatives for relief. It is a fundamental assault on democracy. As Justice Kennedy noted in the Romer decision:

"The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence."

I have deep family roots in Winters Gap, Tennessee, and am saddened to see their legislature follow the same hateful path that darkened Colorado's history.

Jillian,

We appreciate your noticing this bad bill, which is just one of that the many that the Tennessee Transgender Political Coalition (http://ttgpac.com) and our partners are fighting here in Tennessee in 2011.

There has been some discussion here for months on legal options should this actually become law, although we have not given up hope of some sort of legislative miracle, or some sort of new growth of backbone by Governor Haslam should it reach his desk in the next few days.

To all who may have friends or relatives who vote in Tennessee, please make sure they know about this bill, along with the other anti-LGBT bills we are fighting, as well as the hate crimes and birth certificate bills we have introduced. We need everyone who lives in Tennessee and supports equal rights for all to contact their State Representatives and Governor Haslam ASAP.

Marisa Richmond, President, TTPC

This is interesting -- my bet is that it will be declared unconstitutional at the federal district level, and maybe again at the appellate level; but I bet SCOTUS will refuse to hear it because it is not different enough from Romer to deserve a re-visitation of the Constitutional issues involved.

arsenalchick | May 16, 2011 5:21 PM

I'm not sure that I agree with your analysis Jillian. States can proscribe what their localities do under the Dillon Rule. Even in states that don't adhere to this very strongly, it is not unusual for them to limit their ability to encumber private parties. My guess is that this policy will be upheld under this doctrine.

Thanks for your insightful comment, Arsenalchick. I had never heard of "Dillon's Rule," though I am familiar with the principle. There's a Wikipedia article on it. "Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control.

That rule does appear to be alive and well in Tennessee. However, it must give way to the Federal Constitution, which, under the Romer Doctrine, prohibits denial of equal protection of the laws to homosexuals. If I am correct that the law was intended to deny protection to LGBT individuals, then it is my prediction that the Dillon Rule will be ignored by the Federal courts.

arsenalchick | May 18, 2011 2:07 PM

Jillian,

According to one source (Dalmat,2005), TN is an "imperio in imperium" state. If this is correct, the actions of the TN legislature might be moot (along with any constitutional challenge to the proposed TN law). In imperio states, the local governments are supreme in local affairs. As such, there is question as to whether this is actually a local affair. The state could also argue that there is preemption via occupation of the field. State law expressly covers nondiscrimination against certain protected class. As such, local ordinances would not be allowed. The localities could argue that they are not in direct conflict though.


Dalmat, Darin. (2005). Bringing economic justice closer to home: The legal viability of local minimum wage laws under home rule. Columbia Journal of Law and Social Problems, 39(1), 93-147.

Jazz&Seabreezes | May 24, 2011 11:50 PM

According to TN's Constitution, the legislature can create, that is authorize by Private Act, cities; but the counties are enshrined in the Constitution itself and thus not subject to the legislature for their existence. Also worth noting- TN's legislature didn't approve the Civil Rights Act of 1964 until 1988, when it passed the TN Civil Rights Act which lacks enforcement authority but did remove Native Americans from the constraints of Jim Crow laws in Tennessee. The state however still does not recognize them as a minority.

How does this jive with Cincinnati's law that forbade any pro-LGBT human rights ordinances? Didn't they end up in court too?

I'm not aware of it, and couldn't find it online. Have any website to point me to?

Jillian, Cincinnati passed Ballot Issue 3, an amendment to the city charter to prevent the city from enacting gay rights, the same day that Colorado passed Amendment 2. The Sixth Circuit upheld the measure before SCOTUS ruled in Romer. After Romer the Sixth Circuit distinguished Issue 3 from Amendment 2 on the basis of its being a local measure rather than a state constitutional amendment and upheld it again. SCOTUS refused to hear an appeal. The case is Equality Foundation v. City of Cincinnati. Voters in the city repealed Issue 3 in 2994.

Er, that would be 2004, of course.

Yes -- and my understanding is that Cincinnati voters changed their minds when there was an economic study indicating that the Issue 3 publicity was causing Cincinnati to look unfavorable to small business in comparison to surrounding cities such as Columbus, Indianapolis, and Louisville, KY.

Timely info in light of [=Alex's recent post=].

Mallory McLaren | May 17, 2011 11:16 AM

I swear, State lawyers are the stupidest things I've ever seen. Allllways trying to cook up some dumb way to try to avoid the Supremacy Clause, or the 14th Amendment Equal Protection framework. You know what reading this article is like? It's like watching Wil. E. Coyote try to kill Roadrunner. Seriously!

I think one Constitutional Law concept which may be invoked here is one that Sandra Day O'Connor invoked in her time on the Court in saying that "appearances matter." Although that concept is generally applied to race discrimination and religion, there's no reason it can't be applied here, and I think if it were it would actually be a window of opportunity for LGBTQI equality under US and State law.

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)

That famously included the city acknowledging that its 'neutral' ordinance banning the killing of animals would not apply to the killing of lobsters at seafood restaurants (if I recall, the Red Lobster chain was the hypothetical used by Justice O'Connor), meaning, of course, that the ordinance really wasn't neutral at all.

That portion of the Tennessee law which nullifies local ordinances, however, likely will survive.

In Romer Justice Kennedy did note:

What gave rise to the statewide controversy was the protection the ordinances afforded to persons discriminated against by reason of their sexual orientation.

And, of course, even though there was other evidence of this in the record, Kennedy actually would have needed to look no further than Amendment 2 itself to make that conclusion:

No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

However, this was how Justice Kennedy analyzed the amendment's effect:

Sweeping and comprehensive is the change in legal status effected by this law. So much is evident from the ordinances that the Colorado Supreme Court declared would be void by operation of Amendment 2. Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.

...

Amendment 2's reach may not be limited to specific laws passed for the benefit of gays and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings.

...

[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.

So, unless the current makeup of the court is willing to go past much clearer neutrality to reach the law's discriminatory intent the state pre-emption of local ordinances will survive (and if it doesn't, that will give rise to a bizarre situation where any states with statutory/constitutional provisions that limit what local governmental entites can do which predate the advent of gay rights laws will have theirs held to be constitutional but those of recent vintage would not be.)

The exact opposite would be true for any application of the law that would attempt to undermine federal sex discrimination law (read: 6th Circuit precedend) in Tennessee.

A question, though: Can I presume that Tennessee's state law applies to entities with fewer than 15 employees, as many (though not all) state anti-discrimination laws do? If so, then it applies to cases that Title VII can't touch.

And, if so, I have another question: What exactly - other than perhaps discriminatory intent (which I can't see this SCOTUS reaching) - prevents Tennessee from having its own definition of sex (however bad that it would be) any more than California is prevented from having a specifically trans-inclusive statutory definition of sex which, one would hope, would remain in place (irrespective of employer size) even if the Bush Crime Family-packed SCOTUS decides that all of that trans stuff emanating from Price Waterhouse v. Hopkins is BS?

Don't get me wrong. I think this Tennessee law is sickening. And, my view is that the Fourteenth Amendment not only allows but commands reviewing courts to kill any law whose legislative history has even a scintilla of religionist bigotry in it - but I think we can agree that the current edition of the DC 9 is not going to utilize that analysis. But that reality leads me to disagree with your conclusion. The right fact pattern might lead a court to overturn the sex definition part, but I can't see any court getting rid of the general local ordinance nullification.

Charles Gossett | May 17, 2011 12:34 PM

I wouldn't count too much on federal courts declaring this version of the law unconstitutional. The problem with the Colorado law was that it specifically singled out a particular group and forbade them from seeking to pass local ordinances to protect their rights while allowing other groups to seek such protection. This law essentially says that all non-discrimination laws must be passed at the state level and local governments can do no more than pass identical local versions of the state law. All groups, including LGBT citizens, are allowed to campaign for extension of the state-level civil rights law to include protection for them (which would then require every local government in TN to provide such protection). Federal laws, like state laws, supersede local laws, so the fact that local governments would lose coverage under local law for some groups, doesn't mean those groups have lost coverage...just that you have to pursue remedies for discrimination somewhere else (like federal court rather than a local human rights commission). Now it may be that there are provisions in the TN state constitution that would protect the right of local governments to provide such protections, but I don't know enough about TN law to say one way or the other. And then, even federal courts can be surprising sometime so I won't say the courts would NEVER overturn this. I'm just saying that Dillon's Rule about local governments being subordinate to the state government and the fact that this law simply reserves to the state the right to determine which categories will be protected under nondiscrimination laws reduces the likelihood of successful court appeals.

Leigh Anne | May 17, 2011 2:29 PM

Reading Romer v Evans still gives me goosebumps!

First, to clarify, this is still only a bill. The House votes tomorrow morning on a Senate amendment. If it passes, and we expect it will, it then goes to Governor Bill Haslam, who has 10 days (not counting Sundays) to sign. Only then will it be law.
So far, in our discussions with lawyers, we have not yet decided whether to pursue legal action in state or federal court. The TN bill is different from Amendment 2. The lawyers from the Family Action Council of TN were very clever in writing the bill. There is also a very limited opinion from the TN Attorney General stating that this is "likely" constitutional. He only responded to 2 direct questions, but we are not happy with that opinion.
One of the arguments made by proponents of the bill is that it would prevent a "hodg podge" of laws. They claim that all local non discrimination laws should be consistent with state and federal laws, and, as we all know, we do not yet have ENDA and TN has zero protections for any LGBT people. Nashville does have a separate Non Discrimination law covering city employees only, and that law is not touched by HB600, but it would prevent Nashville, or any other local jurisdiction, from having non discrimination laws covering any private entities.

Marisa Richmond, President, Tennessee Transgender Political Coalition

Jazz&Seabreezes | May 25, 2011 12:05 AM

Dr. Weiss, if I recall correctly, under federal law, states cannot enact legislation that calls for less than what federal statutes specify. They can however add further requirements, in the same spirit of the federal mandate. This also applies to state gov'ts and their municipalities. The State AG has ruled this is so in civil rights law matters of racial discrimination. Thus it would seem TN's 'Equal Intrastate Commerce Access Law' is in direct conflict with longstanding, legally recognized and sanctioned legal and judicial practices and presets.