Monday, April 25, 2011
Politics A.G. Opines that HB 600 is Constitutional, but Which Constitution?
Posted by Bruce Barry on Mon, Apr 25, 2011 at 4:01 PM
The Tennessee Attorney General's office has issued an opinion that state legislation designed to negate local ordinances banning sexual orientation discrimination is not unconstitutional, but does that mean there's "nothing wrong" with the measure, as the headline of Tom Humphrey's Knoxville News Sentinal blog post suggests?
No, it doesn't, because the A.G. opinion (pdf) didn't address at all the potentially fatal equal protection problems that HB 600 may present. A.G. opinions typically respond to specifically posed legal questions — in this case two narrow questions about local contracting authority and retroactivity posed by Sen. Joe Haynes (D-Nashville).
Haynes didn't ask A.G. Robert Cooper to weigh in on the big elephant in the courtroom — the U.S. Supreme Court's ruling in the 1996 case Romer v. Evans. In that case the Court ruled 6-3 that a Colorado state law prohibiting local governments from outlawing discrimination based on sexual orientation was unconstitutional on Fourteenth Amendment equal protection grounds.
HB600 has obviously been crafted to try to make an end run around Romer, avoiding as it does any specific mention of sexual orientation, and supporters have been careful in public comments to frame the bill as being about business rather than bigotry. We're not fooled, and if the thing is enacted we'll eventually find out if federal courts aren't either.
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