From the gallery in the Metro Council chambers, Nashville gay and lesbian rights advocates let out a collective cheer last Tuesday when council members voted 21-16, with three abstentions, to make it unlawful for city contractors to discriminate on the basis of sexual orientation and gender identity.
But their victory could be short-lived and, in the end, only symbolic.
Last week’s preliminary approval of Metro’s nondiscrimination ordinance, requiring companies that do business with the city to adopt the same nondiscrimination policy that pertains to government employees, means it will almost certainly clear the council’s third and final vote March 15. Mayor Karl Dean, previously hesitant about endorsing the proposal, has since said he would sign the bill into law.
But lingering in the background is a state bill introduced by Republican Rep. Glen Casada of Williamson County that would effectively quash the council’s action by stripping local governments’ ability to enforce antidiscrimination employment protections explicitly for gay, lesbian and transgender people.
“Their actions — Nashville’s — may appear to them as local, but what Nashville does affects the surrounding communities,” Casada said. “We cannot have a hodgepodge of laws that will hurt commerce and hurt the expansion of business.”
Chris Sanders, president of the Tennessee Equality Project, said regardless of the outcome at the state level, the council’s approval of the bill represents a defining moment for the city’s LGBT community.
“If you’re going to call yourself Music City, you better be about talent in terms of access to employment,” he said. “It would still send that message.”
Nonetheless, Sanders is holding out hope that the state bill, if approved, could later be the subject of a court challenge and determined unconstitutional. And he said there’s “no foregone conclusion” that the state legislation would pass, saying that some Republicans might be wary of overturning local public policy.
That could be wishful thinking.
Christian-right activists working outside the public eye to defeat the new nondiscrimination policy have already pivoted to the looming debate over the state bill.
“Our best bet at this point is making sure the state legislature passes [Casada’s bill],” David Fowler, head of the Family Action Council of Tennessee, wrote in an email to supporters shortly after the council’s vote.
While Fowler’s efforts weren’t able to sway the Democratic-leaning — though officially nonpartisan — council, his message could find a more receptive audience on Capitol Hill. With Republicans enjoying a supermajority in the state House and Senate, most observers, even council members, are predicting the legislation will breeze through the General Assembly.
But Casada’s bill raises an important discussion about the role of state and local governments. When should local governments enjoy the autonomy to enact their own rules? When should the state intercede?
Casada, who lost the race for House Speaker to Rep. Beth Harwell at the start of the legislative session, called his bill a “broad-spectrum” piece of legislation, which he accurately points out touches on a number of issues. Casada filed the Tennessee Intrastate Commerce Act of 2011 two weeks ago. He anticipates six weeks minimum to push it through the legislature.
“It will, in a lot of regards, mirror the Interstate Commerce Clause that the United States government has on states,” Casada said. “This, in turn, would do that to our local governments.”
If approved, local governments would have to limit antidiscrimination employment protections to cover only race, creed, color, religion, sex, age or national origin. Moreover, local governments would also be outlawed from setting minimum wages on businesses, mandating health insurance benefits and ensuring family leave requirements.
“Just like the federal government doesn’t allow states to have a hodgepodge of local rules which would affect interstate commerce, this bill will do the same,” Casada said. “It keeps all our communities within federal guidelines of a whole host of things — from family leave to living wage — and it keeps all of our local communities homogeneous on those types of policies.”
Council attorney Jon Cooper’s legal analysis on the effect of Casada’s bill is pretty cut-and-dried when it comes to Metro’s nondiscrimination bill. “Whatever the council does would be nullified,” he told The City Paper. In other words, Casada’s bill would be retroactive.
Some Democrats are likening Casada’s legislative endeavor in Nashville to another Republican-led intervention earlier this month, when the General Assembly voted to postpone a potential school system merger between Memphis and Shelby County.
“If you look at all the bills they’ve filed, a lot of them are telling local governments what to do, stepping in other people’s jurisdictions,” said Democratic Rep. Mike Turner of Old Hickory.
“Regardless of how you feel about the [Metro nondiscrimination] bill, somebody in Williamson County doesn’t have any business messing with Davidson County,” Turner said. “I think it’s wrong. This is somebody who says he’s not for big government. He doesn’t like the federal government telling us what to do, but he likes the state government telling local governments what to do.”
Turner said he recently met with Mayor Dean to express his concern over the state bill. He said he hopes Dean will take a stance against the legislation. Contacted Wednesday, Dean’s press secretary did not return comment by The City Paper’s Friday morning press deadline.
Turner also said Williamson County residents rely on Davidson County for utilities such as electricity and water.
“If they’re going to start messing with us, we need to rethink our relationship with Williamson County,” he said.
Harwell, a Green Hills-area resident who is known as moderate in a decidedly right-leaning Republican state legislature, said she hasn’t read Casada’s legislation, but she has talked to the Williamson County lawmaker about his bill.
“His goal, of course, is to not put any kind of restrictions on the hiring practices of private businesses,” Harwell said.
She plans to wait until the bill is in its final form before she offers a stance. Asked whether a state law to explicitly nullify a local ordinance would set a bad precedent, Harwell said “that may in fact be a legitimate concern. We’re always in favor of local governments being in control. But if in fact what the city ordinance is doing has statewide implications — in other words, someone who’s from Williamson County doing business with Metro Nashville — then it does become more of a state issue as opposed to just a local issue.”
The Casada bill played a prominent role on the council floor last week as members deliberated the nondiscrimination ordinance. Councilman Rip Ryman made a motion to defer the ordinance until to June as a wait-and-see approach in deference to the state.
That unleashed this passionate plea by Mike Jameson, one of five council members who cosponsored the legislation:
“If the state legislature, truly in their wisdom, thinks it’s appropriate to deprive cities of autonomy, to tell citizens of every city in the state that you no longer have self-control and self-determination in setting these policies, think of all the other policies we set uniquely and individually here,” Jameson said. “We have unique laws in Nashville on environmental protection, on employment, wage and hour issues.
“If we’re going to just defer to the state and punt to them and let them tell you everything to do, then why are we are?” Jameson said. “Why is there a council?”
Ryman’s motion failed. After the meeting, Jameson said he and other members are trying to find other states with similar legislation to study the potential effects. And he didn’t back down from his criticism of Casada’s bill, saying its approval would create a precedent of “eliminating local city autonomy.”