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Constitutionality of Tennessee "Equal Access to Intrastate Business Act"

by Professor Will Huhn on May 22, 2011

in Constitutional Law,Equal Protection,Wilson Huhn

The Tennessee Legislature has approved legislation that is intended to make it impossible for Nashville or other cities to prohibit discrimination on the basis of sexual orientation.  The legislature is attempting to frame the bill as "pro-business" rather than "anti-gay."  Will this tactic insulate the bill from constitutional attack?

The City of Nashville, Tennessee, adopted an ordinance that prohibited city contractors from discriminating on the basis of sexual orientation. 

According to Andy Sher at timesfreepress.com, in his May 18 post Bill bans Nashville measure against gay bias, members of the Tennessee legislature have responded by approving the "Equal Access to Intrastate Business Act," which withdraws from municipalities the power to enact nondiscrimination laws on any basis other than what is provided for in state law.  The proposed law states:

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 [state law].

The bill is currently awaiting the Governor's signature.  Several gay rights organizations, including change.org,  the National Gay & Lesbian Chamber of Commerce, and the Tennessee Equality Project, are urging the Governor to veto the law.  Supporters of the bill include the Tennessee Chamber of Commerce (according to this post at Pam's House Blend) and the Family Action Council of Tennessee (FACT) (according to this post, Equal Access to Intrastate Commerce Act: A âWin-Winâ for Businesses, Taxpayers and Consumers).

State law currently bans discrimination on the basis of race, religion, gender, and other factors, but not sexual orientation.  A central factor relevant to the constitutionality of this law is what the intent of the Tennessee legislature was.  Chris Cannon of NewsChannel5.com quotes figures from both sides of the question in his May 13 story Senate Passes Bill To Reverse Metroâs Anti-Discrimination Law.  According to a principal supporter of the law, this is simply about doing business:

"If I have a business in Franklin, Tennessee and to do business in Nashville I must do what Nashville's telling me, all of the sudden Nashville is dictating to the rest of the state what business can and cannot do," said Rep. Casada.

However, according to an opponent, the law is simply reinforcing discrimination against gays and lesbians:

"It had nothing to do with intrastate; it had nothing to do with jobs. It had to do with some people that folks didn't like. And they twisted it up, dressed it up in bows to make it look different," said State Sen. Thelma Harper of Nashville.

This law was supported by the Family Action Council of Tennessee which, despite its obvious religious and moral agenda, on its website describes the law as simply intended to protect business and industry from numerous conflicting requirements. 

Isnât this just about preventing homosexual and transgender rights?

No. First, the bill does not prohibit a local government from including homosexual conduct and gender-related issues in its own employment and personnel policies.

Secondly, there is nothing in the bill that prevents any business or organization, including those that contract with local governments, from voluntarily adopting an internal employment policy that prohibits discrimination with respect to homosexuality or transgenderism. Some companies already have such policies of their own choosing. The bill simply prohibits local governments from imposing on a business or organization a requirement that it must adopt an internal personnel policy containing a practice, standard, definition or provision relating to discrimination not found in the state anti-discrimination law.

Finally, the bill prohibits a local government from imposing on any business or person, other than its own employees, any personnel practice, standard, definition or provision relating to discrimination that deviates from the definition of âdiscriminatory practicesâ in the state Code (i.e., discrimination based on an individualâs race, creed, color, religion, sex, age, or national origin). For example, the bill would prohibit a local government from adding âimmigration statusâ to an anti-discrimination in employment law relative to businesses within the local governmentâs jurisdiction.

On the other hand, there is on Youtube this unusually hateful video showing a man with a stubble and dark glasses furtively following a young girl into a women's bathroom at a playground, and urging Tennessee parents to call their representatives to support the enactment of the law!  This loathsome commercial may be found at http://www.youtube.com/watch?v=7o2YGH8bacE.  According to Youtube this video was posted by FamilyActionTN on March 29, 2011.  Clarknt67 at Daily Kos concludes that with this video the Family Action Council of Tennessee is attempting to equate homosexuality with pedophilia, and is offering that as a reason to support this bill.  If the FACT organization produced and disseminated this video it would appear that its website is disengenuous in suggesting that the motive behind this bill was simply to lift a financial burden from Tennessee businesses.    

The Tennessee State Attorney General's office has issued an opinion concluding that the law is constitutional.  However, the AG's office only addresses whether the Tennessee Constitution permits the state legislature to interfere with a legislative scheme adopted by a municipality and whether it may retroactively repeal an existing ordinance.  It does not reach the more difficult question: is this law constitutional under Romer v. Evans?

Romer was based on similar facts.  Several cities in Colorado had adopted ordinances prohibiting discrimination in housing, employment, health care, education, and other activities on the basis of sexual orientation.  The people of the State of Colorado responded by adopting an amendment to the state constitution withdrawing from municipalities the power to enact such laws.  In 1996 in Romer the Supreme Court struck down the state constitutional amendment on the ground that it was animated by an improper purpose.  The amendment, ruled the court, was adopted out of dislike for an unpopular group; this motive constituted an improper legislative purpose, and made the amendment unconstitutional.

If the courts were to find that hatred or unreasoning prejudice exemplified by the FACT video were one of the reasons that this bill was adopted then it would be struck down under this prong of Romer.  However, if the courts conclude that that legislature acted simply from economic motives then this ground of Romer would not suffice to invalidate the law.

But Romer was decided on other, objective grounds as well.  In his opinion for the six-justice majority, Justice Kennedy wrote:

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "`Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.'" Sweatt v. Painter, 339 U.S. 629, 635 (1950) (quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948)). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of `equal protection of the laws is a pledge of the protection of equal laws.'" Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)).

The evident purpose and effect of the Tennessee law is to make it "more difficult for one group of citizens" to seek aid from city or county government than it was before the enactment of the law.

Another relevant case is Reitman v. Mulkey (1967) in which the Supreme Court ruled that a similar California law was unconstitutional because it acted as an encouragement to private acts of discrimination.  In the closing words of its opinion the Court stated:

Here we are dealing with a provision which does not just repeal an existing law forbidding private racial discriminations. Section 26 was intended to authorize, and does authorize, racial discrimination in the housing market. The right to discriminate is now one of the basic policies of the State. The California Supreme Court believes that the section will significantly encourage and involve the State in private discriminations. We have been presented with no persuasive considerations indicating that these judgments should be overturned.

Under the reasoning of Romer and Reitman it woud appear that the Tennessee law, too, is unconstitutional.  Under the Equal Protection Clause it is not necessary for the persons challenging the law to prove that the legislature was motivated by hatred or disapproval of gays and lesbians – although such a finding would be sufficient to invalidate the law.  It is only necessary to prove that the legislature intended for this law to have an effect based on sexual orientation, and that the effect of this law was to encourage private acts of discrimination or to make it more difficult for gays and lesbians to achieve equal rights at the local level of government than other groups.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

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