Here's a brain teaser. Let's say a company in Fort Lauderdale, Fla., has a contract with the Metropolitan government to fabricate sidewalk signs for The Gulch — you know, so that a tourist is no longer without resource when someone steers him toward a thing called a "Demonbreun." Things are going swimmingly until a report surfaces that the sign company — run by a known Focus on the Family sympathizer — has allegedly fired an employee for being gay.
Aggrieved, the gay employee is considering a lawsuit. Charges are hurled, absorbed, printed, circulated. Emails containing ominous links are forwarded. When word gets back to Nashville, some in city government demand the boss's head. We can't have taxpayer money going to a feral animal like this. After all, word is he has rabies.
The question, then: Under a bill that would require city contractors to adopt a workplace anti-discrimination policy that includes "sexual orientation" and "gender identity," would Nashville be able to cancel the sign company's contract?
Council members have grappled with this nondiscrimination bill for the past few months, confronting a range of concerns — from how outsiders might perceive the city if the local legislature killed a gay-rights measure, to a widely disseminated canard about personnel policies disrupting statewide commerce. The council's progressives, along with sympathetic moderates, seemed to beat back a concerted effort by the Christian right and its political beneficiaries to camouflage frothing anti-gay rage as concern for small business.
Indeed, all that fury seemed to dissipate — quietly, even — when the council passed the bill on second reading last month in a 21-16 vote, and the entire gallery cleared the chambers less than halfway through the meeting. After all, third reading is little more than a formality; most every piece of legislation on third follows whatever happened on second. There was an imminent sense of victory.
Yet a wrinkle has come up in the past few weeks. During a recent meeting of the budget and finance committee, At-large Councilman Jerry Maynard offered up a similar scenario to the one about the sign maker (although, in fairness, the Scene takes credit for certain rhetorical flourishes: Maynard's took place in Birmingham, Ala., and included neither the sign business nor the feral boss). The answer he got from council attorney Jon Cooper was that, no, Nashville wouldn't be able to upend due process and break a contract based on speculation about an incident that happened outside the city.
But the question hasn't gone away. In fact, it has simmered during the typically quiet interval between a bill's second and third readings. And much of the heat has been generated by a behind-the-scenes clash between two prominent constitutional scholars over how far the law might actually go — given, of course, that it passes on Tuesday.
Nashville attorney Abby Rubenfeld was at the seventh-annual Napier-Looby Barristers' Banquet on Thursday, Feb. 17, when a longtime professional acquaintance approached her with a legal conundrum. James Blumstein, the renowned Vanderbilt law professor, had been contemplating the nondiscrimination ordinance the council voted on two days before. After much thought, he'd come to a conclusion: The ordinance could be ruled unconstitutional, were it challenged the right way.
Rubenfeld, the attorney for deposed Belmont soccer coach Lisa Howe, hadn't been involved in the Metro nondiscrimination ordinance up to that point. But after the party, the two exchanged emails on the subject. Soon, Blumstein sent what he called a "back of the napkin" legal analysis to Rubenfeld. It is long, detailed and — despite what he might wish now — part of the public record. That's because he copied council attorney Jon Cooper on the email.
Blumstein's analysis is complex for a napkin, but it carries more weight than the bill's advocates might hope. Essentially, it says the nondiscrimination ordinance might violate the Commerce Clause of the Constitution because it puts the city in a position of imposing regulations on any company in the world, should that company also be doing business with the city.
In Blumstein's reading, there are widespread implications if a bill is not limited to employees of city-contracted businesses who work in Davidson County. As he interprets the bill, a company with a Metro contract has to adopt the nondiscrimination policy for all its workers, no matter where in the world they are. That's a problem if, for example, an out-of-state textbook vendor selling books to Metro schools doesn't carry an LGBT-friendly personnel policy.
"It's a risky strategy," Blumstein says. "When I've spoken to various people, I'm not sure they've realized the implications of this. I don't think that was their goal. I think their goal was to say that if Metro is going to buy something from a company, that company should agree to engage in a nondiscrimination policy with respect to those goods or services. And I think that's a defensible position."
Blumstein says he intended the memo to bolster rather than block the bill. If so, it had the opposite effect on the bill's supporters, who suddenly seemed outgunned. Seeking a counter-punch to Blumstein's body blow, Rubenfeld asked Rebecca Brown, a professor of constitutional law at the University of Southern California, to offer her own analysis.
In a 15-page memo, Brown — who taught at Vanderbilt Law for two decades and has known Blumstein at least that long (their offices were next door to each other) — refuted the Commerce Clause argument. She wrote that, as a consumer in the marketplace, Metro is allowed to place its own conditions on the purchasing of goods.
In Brown's reading, the ordinance would simply establish what kind of entity Nashville would like to spend its money with, rather than require any business to adopt a particular policy. It is, of course, the choice of the business whether to contract with the city government based on Metro's conditions.
"It's just like you buying dolphin-safe tuna," Brown says. "You just want whatever money is used to buy the services you need, but in so doing to accomplish whatever social objective you wish to accomplish with your money. They're permitted to do that as purchasers, even if they might not be able to as regulators."
To the uninitiated, these lines might seem finer than fine. At the core of Blumstein and Brown's debate is an esoteric legal question: Is the city regulating the behavior of companies with which it does business, or imposing conditions on contracts it pays out? The former is probably unconstitutional, the latter just fine — because when a city government enters the market, it can basically act like any of us with a little money to spend.
"It's just choosing a partner, and it wants to choose a partner that abides by its values that it's expressing through these standards," Brown says.
But the Commerce Clause is about balancing the burden placed on businesses with the government's attempts to promote a greater good. If that balance tips against business, Blumstein writes in his analysis, there is likely a legitimate constitutional challenge.
"There is clearly a significant burden on companies that do business outside Nashville/TN if they have to alter employment practices beyond TN," he writes. "They are being required to alter personnel policies unrelated to TN, forgoing conduct that is not otherwise illegal under federal and state law."
In the past, according to Brown, courts have generally sided with states and cities on such matters, as long as those states and cities aren't imposing new costs on businesses to comply with their rules. To her, there is no added per-employee cost to the Nashville ordinance — as there would be, say, if a local government decided to require city contractors to provide health care for employees' domestic partners.
Councilman Maynard says he's comfortable with the law as it is. Nearly 200 other states, cities and counties have variant anti-bias laws, and they've not been defeated on these grounds.
"We're not requiring that companies change their personnel policy," Maynard says. "We are not in any way impacting a company's ability to do business out of the state of Tennessee. We are not having any impact, in my opinion, on interstate commerce because we are not restricting and/or prohibiting companies that do business with us from doing business outside the state.
"We're simply asking them to sign an affidavit that they not discriminate based on sexual orientation or gender identification, which does not then prohibit them from doing outside the state."
Which brings us back to the essential question of the rabies-infested boss down in Florida who fired his gay employee because he disagrees with that "lifestyle" (OK, allegedly). If you read Brown's analysis, while Metro couldn't have canceled its contract with the sign maker under the bill, it would have never contracted with the company in the first place. And if you read Blumstein's, well, the company would never have bid on a Metro Nashville contract, because that would've required it to adopt a policy protecting gays in the workforce.
Either way, of course, it's the sign company's hardheaded honcho who loses out.
Email editor@nashvillescene.com.
