When it comes to sexual orientation, Mayor Bill Purcell has seemed awfully confused. Purcell now says he opposes anti-bias legislation that would prohibit job discrimination against gays and lesbians because of concerns that any such bill would be “unconstitutional” and “unnecessary.” Twice in the last three weeks, however, even as there were protests about the bill outside the Metro Courthouse, Purcell’s aides told the Scene that the mayor had no position on the matter.
The largely symbolic ordinance would give the Metro Human Relations Commission, itself pretty much a paper tiger, the authority to investigate claims of discrimination based on sexual orientation. For its affirmation of tolerance, progressives love the bill. Meanwhile, social conservatives loathe it. But everybody has had their say, except Hizzoner, who has passed on several opportunities to offer his view.
“I think he had an opinion,” says Deputy Mayor Bill Phillips. “He just had not taken a position.”
Phillips says that the current debate is largely a council matter and that the mayor isn’t sure whether he would sign an anti-bias ordinance if it ever landed on his desk.
The mayor finally has mustered a position, but, remarkably, his concern over the bill’s constitutionality flies in the face of what his own legal director has opined. Last week, Metro legal director Karl Dean ruled that Metro was well within its rights to prohibit job discrimination against homosexuals. The state of Tennessee has given Metro the authority, he wrote, to promote the general welfare “by regulating all things harmful to the comfort, safety and welfare of the public.”
Dean answered the question about whether protecting gays and lesbians might infringe on someone’s freedom of religion by noting the Supreme Court’s ruling that religious practices sometimes must yield to the common good. Laws against polygamy, after all, are constitutional.
Dean ruled that secondary parts of the bill, including whether it could apply to housing discrimination, were iffy, but he affirmed the crux of the legislation prohibiting job discrimination based on sexual orientation. In another legal opinion, Metro Council attorney Don Jones ruled that the current anti-bias bills are unconstitutional, but that they could be nipped and tucked to be legal. Currently, the legislation’s original sponsors, term-limited council members Chris Ferrell and Eileen Beehan, plan to file a new ordinance that would address the legal concerns.
In the summer of 1999, when Purcell was running for mayor, he told the now-defunct In Review that he opposed the idea of anti-bias legislation for gays on the grounds that it was unconstitutional. Dean’s most recent opinion apparently hasn’t swayed him. “Well, it’s his opinion,” Phillips says of Dean’s largely affirmative judgment of the anti-bias ordinance. “On occasion, there are opinions you disagree with.”
Purcell’s continued fretting that an anti-bias ordinance would be unconstitutional is unfounded, says Jennifer Middleton, a staff attorney for the New York-based Lambda Legal Defense and Education Fund. “I don’t really know what the mayor is talking about,” she says. “We’ve never seen an anti-bias ordinance be ruled unconstitutional.”
In fact, more than 240 municipalities have some sort of legislation on the books discouraging discrimination against gays and lesbians. Among these cities are not just the usual suspects in the northeast and west but also Gainesville, Fla., Louisville, Ky., and Columbia, S.C.
Purcell, a lawyer himself, also seems to think that the anti-bias ordinance is unnecessary in light of federal protections. “The mayor thinks there are already provisions that provide equality to people in this country,” Phillips says. Like what? “It’s called the Constitution and its amendments.”
Actually, the founding fathers and their political descendents had nothing to say about people who are gay, which is why Ferrell proposed the bill. “There is no federal or state law that offers protection based on sexual orientation,” Ferrell notes.
There’s even a dispute about to what extent employers are denying jobs to people who are gay. Phillips says that from what the mayor’s office can tell, that kind of bias isn’t widespread. “We haven’t received any reports of that,” he says. “If we do, we have the mechanisms to check it out and will do so vigorously.”
But last month, following a public hearing dealing with job discrimination, the Metro Human Relations Commission issued a report based on anecdotal evidence, concluding there’s “a need in Davidson County to make disability and sexual orientation a protected class.”
Finally, the Scene asked Phillips if it’s wrong to discriminate based on sexual orientation, regardless of whether Metro Government can do anything about it. “The mayor has a solid record in that arena,” he says. “We have the first openly gay [mayoral] staff member in Metro,” he says of John Bridges, the mayor’s director of cultural affairs. “I don’t know what we can point to more solid than that. I don’t know how many gays have been on mayoral staffs, but we have the first one who is out in the open.”
And that’s the one thing that the mayor’s office seems sure of.
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