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. 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.