Despite the hilariously ironic attempt at a stealth name — the Equal Access to Intrastate Commerce Act — the HB600 fiasco didn't slip under the radar of Leslie Fenton at Salon. Fenton notices the striking similarities between Tennessee's new anti-gay law and Colorado's notorious Amendment 2, which was struck down by the Supreme Court in Romer v. Evans — and she suggests that our law will likely get struck down too. Here's hoping.
Is the new Tennessee law similar enough to Colorado's Amendment 2 that it would simply be held unconstitutional under Romer? There are arguments either way. The Colorado law was so blatant that it specifically named gays, lesbians, and bisexuals, removing them from the legislative process that every other group of people remained free to participate in. But the Tennessee legislators clearly learned their lesson from Romer: They did not single out the LGBT community, rather, they applied the law to any group that does not currently receive state protections. On the other hand, they did forbid municipalities from enacting any new legislation designed to protect LGBT citizens, even if it isn't explicitly stated. Further, the origins of the law are less than subtle; it is clearly a reaction to the Nashville anti-discrimination ordnance that protected LGBT workers. This situation is similar to the anti-gay adoption prohibition in Arkansas that was stuck down earlier this year. While it did not specifically prohibit gays from adopting, the ban on "unmarried couple" adoptions was passed as a workaround to a law that actually banned gay adoptions and was struck down by the courts. It's also important to note that Romer and its protections have been strengthened in recent years by the Supreme Court's 2003 decision in Lawrence v. Texas, also authored by Justice Kennedy, which struck down a Texas law that criminalized homosexual sodomy. The Tennessee anti-gay employment measure should receive similar scrutiny, and treatment, from the court system.