Ari Ezra Waldman | Law - Gay, LGBT | Nashville | News | Tennessee

Nashville, Tennessee: Crazy Town or Crazy State?


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Large_nashville_tn_local"Crazy Town" is a song about Nashville, Tennessee. It tells the story of how hard it is to make it in a town as crazy as Nashville, or, "Hollywood with a touch of twang." It may indeed be hard to make it in Nashville, but just last month, the Hollywood of the Bible Belt tried to make life a little easier for its LGBT residents. Its town council proposed legislation that would require city government contractors to abide by the city's non-discrimination policy, which includes protections for LGBT persons.

But, yesterday, Andy posted about another proposal out of Nashville -- out of the state capitol building rather than city hall -- wherein municipalities in the state would be prohibited from passing their own anti-discrimination laws and would instead have to rely on the state-wide statute. The bill limits the state's non-discrimination policy to "race, creed, color, religion, sex, age or national origin."

Once again, it's hard to make it in Nashville.

This story seems like it is about discrimination against gays and lesbians in government contracts and employment. After all, but for Nashville's decision to include LGBT Tennesseans in its non-discrimination policy, conservative members of the state legislature would never have proposed this legislation. It is actually much more. The proposed state law proposes to eliminate the municipality as a recourse for LGBT political activity to achieve equality. It would narrow their recourse to changing state law, something that seems far less likely given Tennessee's conservatism.

Let's set aside for the moment whether this bill is a good/bad idea. I would imagine that many readers feel this is a bad bill. I want to ask a different question: Is this constitutionally permissible?

Continue reading "Crazy Town or Crazy State" AFTER THE JUMP.

The Tennessee bill to prevent municipalities from adding sexual orientation (or any other new classification) to their anti-discrimination policies is, at its core, an attempt by the state legislature to take away from gays and lesbians the opportunity to use local politics to better their lot in life.

This should remind us of a parallel -- though not identical -- situation that happened in Colorado, and culminated in the landmark gay rights case, Romer v. Evans. At issue in Romer was the constitutionality of an amendment to the Colorado constitution (Amendment 2) that that would have prevented any city, town or county in the state from passing any law that would include gays and lesbians as a protected class. In other words, it prevented all levels of local and state government from passing anti-discrimination laws that included prohibitions on the basis of sexual orientation. Like the impetus for the Nashville bill, what inspired Amendment 2 was progressive local actions: Aspen, Boulder and the city and county of Denver enacted gay-inclusive anti-discrimination laws.

The Court decided that Amendment 2 was not rationally related to a legitimate government interest. It was, the Court found, based purely on animus toward gay people, which can never be a legitimate motive for any government action. But, the central problem was that it took away the political opportunities for gays and lesbians where everyone else had the right and ability to use their political muscle to get favorable legislation passed at the city, county and state level. Amendment 2 had the practical effect of allowing other interest groups to protect themselves through electing local, county and state representatives; lobbying local, county and state political bodies; and any other part of the political process. Instead, the only political option open to gays and lesbians was to get a 2/3 majority of the Colorado population to change the state constitution. Hardly an easy task, especially since the the citizen initiative process in Colorado is even harder than it is in California.

The Tennessee bill is less egregious and less restrictive than Amendment 2. The state political process is still available to gays and lesbians under the proposal, and no one says that gaining anti-discrimination protections from the state legislature has to be an easy task.

But, was it the severity of Amendment 2 that was the problem for the Court in Romer, i.e., what made it irrational to deny gays and lesbians all access to the political process was that denial of all access proved it was based on anti-gay animus? Or, was it the mere fact that the provision denied a group some access to the political process, no matter how severe, and imposed an extra burden on the political rights of one class that no other people had to bear, i.e., what made it irrational to deny gays and lesbians any access to the political process would not vary as the severity of the denial of rights changed?

The Court seems to switch back and forth. At times, the Court emphasizes that the effect of Amendment 2 was "[s]weeping and comprehensive." And, then, moments later, the Court reminds us that Amendment 2 was really about the fact of "withdraw[ing] from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and ... forbid[ing] reinstatement of these laws and policies." Amendment 2 was both "far reaching" and "takes away certain rights" and only "imposes a special disability upon ... [gays and lesbians] alone."

The question remains: Is the constitutional problem in Romer that a disability was imposed on gays and lesbians alone, suggesting that any similar disability need not be as severe as Romer to run afoul of the Federal constitution's Due Process Clause? Or, is the constitutional problem that creates a due process violation the fact that Amendment 2 was so sweeping and took away all political rights from gays and lesbians, suggesting that less severe versions of Amendment 2 would not trigger a due process violation?

In the end, Romer focuses on the severity of Amendment 2: "Amendment 2 fails... First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its 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." The broad denial of rights made Amendment 2 invalid; the breadth of its reach made it irrational.

But, the decision is replete with references to suggest that even though Amendment 2 was particularly egregious and broad, legislation that denies rights based purely on animus need not be so severe and broad to clash with Romer's core holding and with due process. So, a challenge to Tennessee's proposal may be harder, but Romer provides some ammunition to the cause.

Different states have different relationships with their municipalities; different state constitutions establish different levels of "home rule" for local governments. But, suffice it to say, the issue here (and in Romer) is more about denying particular communities access to certain parts of the political process than about big (or small) state government. But, the relationship between the state and local governments comes into play: If this is the only area in which the state has imposed on the home rule of its localities, it is more likely that the state's decision to do so is based on animus toward the one group to which it is denying rights and access. And, while Romer by no means closes the book on the constitutionality of Tennessee's bill -- in fact, it just barely opens it! -- the proposal implicates the same values and imposes similar forms of discrimination.

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  1. Absolutely not. We have been down this road before in Colorado. They attempted to severely limit the gays' access to civil recourse against discrimination, and it went to the Supreme Court. The law was struck down.

    Posted by: toulouse | Feb 9, 2011 2:22:24 PM

  2. What we are seeing here is the same thing happening in the abortion fight. They are going to keep trying many small restrictive ways to get at us rather than one big way, which is more likely to be deemed unconstitutional. In the end, since they will never stop, it is going to take a definitive statement by the Supreme court that we are indeed deserving of all the same rights and responsibilities as every other citizen. I don't see that happening anytime in the next 20 years, meaning we will see many other attempts like the one in Tennessee.

    Posted by: Mikey | Feb 9, 2011 2:29:00 PM

  3. Hi Romer... Welcome back. I think this could be a very good development for gay rights. A statewide referendum creating a state constitutional amendment (as in Romer) would typically be granted a bit more deference than a simple piece of legislation. Kennedy wrote the opinion in Romer. This legislation out of Tennessee clearly violates the opinion expressed by Kennedy in that case. Justices do not like when their opinions are ignored. I think a law suit that threatened to make its way up to SCOTUS on these facts would piss off Kennedy sufficiently to pit him against right wing/Christianist BS, making him more likely to support us in our Prop 8 law suit.

    In Romer, part of the decision did hang on it being a constitutional amendment, which is harder to revoke. So I guess in the most technical sense it is not in direct violation of that opinion, but it certain flies in the face of the spirit of the opinion. I'd like to see this play out, personally.

    Posted by: Jon B | Feb 9, 2011 2:41:14 PM

  4. Great analysis, Ari, although it sounds like this bill isn't quite as explicit as Colorado's Amendment 2. In other words, my reading was that no additional classes could be protected than those that are protected by state or federal law. So, whereas Amendment 2 was explicit in excluding gays, this proposed legislation merely excludes all other classes. It might make a difference...

    Posted by: ColinATL | Feb 9, 2011 2:55:30 PM

  5. @ColinATL: you are absolutely right! thank you for your excellent comment! Amendment 2 was worse not only because of the fora it took away from gays and lesbians, but also because it was specifically geared toward gays and lesbians. so, there really are two questions: is the violation based on the fact of debilitating political rights or the severity? either way, is it about debilitating the rights of one group that proves animus or is it enough that it was intended to harm a particular group through a more generally applicable (yet still debilitating) law. that is, is it any better because it takes away rights from a larger classification of minorities?

    Posted by: Ari Ezra Waldman | Feb 9, 2011 3:11:48 PM

  6. @Ari Ezra Waldman: while this law may not be worded to specifically target gays, the intent is clearly to do so. Therefore, it is just as egregious as Amendment 2. It also shows the lengths republicans are now willing to go to in order squash any recourse gays have for fighting discrimination: giving local power to the state. This runs totally contrary to the tea party platform. Even with its clever wording, it should not pass constitutional muster.

    Posted by: fred | Feb 9, 2011 6:29:07 PM

  7. Ari, I’m interested in your thought.

    One of the things that always interested me was the different approaches that the Supreme Court of CO took (twice) to Romer compared to the route that SCOTUS did. Namely that in CO, the court held that since Amendment 2 restricted access to the political process for a class of individuals, who were thus prevented from seeking legislative fixes to their problems, the constitutionality of the amendment should be determined under strict scrutiny.

    This compared to how the Supreme Court ruled in that “the primary rationale the State offers for Amendment 2 is respect for other citizens’ freedom of association, and in particular the liberties [of individuals] who have personal or religious objections to homosexuality,” along with CO’s interest in “conserving resources to fight discrimination against other groups” was not rationally related to Amendment 2.

    With that in mind, if this were to pass and then be brought before the courts, would you think an argument more along the lines of how Colorado held would be more effective than one based on SCOTUS’s Romer holding?


    Posted by: matt | Feb 9, 2011 10:43:37 PM

  8. The bill limits the state's non-discrimination policy to "race, creed, color, religion, sex, age or national origin."


    Although that list looks comprehensive at first glance (other than us queers) I wonder if its exclusive quality would be what would make it suspect to Supreme Court Justices. Who's to say there aren't other groups (the disabled, perhaps) who would be shut out most of the political process? Would the Supreme Court accept laws that explicitly say, if you don't fit the right category you don't count?

    Posted by: Glenn I | Feb 9, 2011 11:55:31 PM

  9. As a gay citizen of Tennessee and also an employee of the state (specifically, the educational arm of the state), what concerns me most is what will happen in our schools (K-12 and higher ed) where some schools and districts have adopted non-discrimination policies already that include sexual orientation and gender identity. A law like this would require that these educational institutions would be forced to remove those protections. Not only could that hurt students and employees of these schools, but it also hinders recruiting, particularly at colleges, of students and faculty.

    I am also the Co-Chair of a new GLSEN chapter in TN (the first chapter actually), and I wonder how this impact our ability to help students form GSAs at their schools.

    Posted by: Callie | Feb 10, 2011 11:49:30 AM

  10. If Tennessee is simply revising its civil rights laws to say that local governments may not offer protections to groups other than those covered under state law, they will be consistent with laws in a number of states that have done likewise (e.g., Virginia). That is simply a limitation on local government power and, legally, local governments are "creatures of the state" (though some states offer local governments "home rule" they can almost always find a way to exert their ultimate authority). I agree with those arguing that fact that the Colorado law's singling out of GLBT citizens alone as being unable to pursue legislative remedies was the problem and led to SCOTUS' decision. Similar, though closely related legal concepts, were critical in the three states where state supreme courts overturned efforts by cities to institute local domestic partnership benefit programs for their employees - Virginia, Massachusetts, and Minnesota.

    Posted by: Charles | Feb 11, 2011 2:10:01 PM

  11. @Charles: thanks for your excellent comments. I agree that the salient difference is singling out LGBT (or one group) versus the more general approach. thanks for commenting!

    Posted by: Ari Ezra Waldman | Feb 11, 2011 2:35:53 PM

  12. What fiscal conservatives? Hundreds of thousands of dollars of tax payer's money will be spent against this anti-individual liberty legislation.
    What Constitution? Read the 14th, Romer v Evans and Meyers v. Nebraska.
    These folks are hypocrites and wasting time and money as well as abusing individual US citizens and Tennessee's reputation.

    Posted by: BILL MCCONKEY | Feb 12, 2011 10:49:53 AM

  13. AMENDMENT # 2
    You will notice that the only people endorsing this amendment are politicians and corporations. Anyone else who has lived in a State where the judges were elected know this is a terrible idea that all will grievously regret. Other States wish they could implement these reforms that are already in place here in Tennessee.. You see how bad government is with these incumbents, just wait until they finish destroying our justice system by politicizing it. This is a very unwise and incompetent measure. PLEASE VOTE NO ! The judge's bench is no place to play politics. Once elected into office there is no way to remove or discipline and I will be very sorry.

    Posted by: TOPDOG1 | Oct 16, 2014 1:54:50 PM

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