In September 2009, the Nashville City Council passed an “anti-discrimination” ordinance banning any company from doing business with the city if it had a policy of not hiring homosexuals or those who claim a different “gender identity.” That means any business in Nashville that morally objected to the practice of homosexuality could no longer contract with the city — unless it changed its entire hiring policy to comply with the ordinance.
Supporters heralded the new law, openly stating it was a “first step” for the lesbian, gay, bisexual and transgender (LGBT) community toward future advances, including broadening the law to include all private employers and securing marriage benefits for the same-sex partners of Nashville employees.
That did not sit well with former Tennessee state Sen. David Fowler.
“You basically had one local government dictating the personnel policy [for] businesses who may be primarily located in the jurisdiction of another local government,” he said, “because the ordinance applied to any business, operating anywhere in the state, who wanted to bid on a contract with Nashville.”
While Fowler recognized the Nashville ordinance was a blow to Christian businesses, forcing them to compromise their values and change their hiring policies, he also realized the broader negative implications for the business community as a whole.
Having spent 12 years in the Tennessee Legislature, Fowler — the current president of the Family Action Council of Tennessee — knows a thing or two about building coalitions. Realizing there was no time to waste, he reached out to former colleagues and local businesses, then enlisted the help of the Alliance Defense Fund to form an action plan. In late 2010, they began drafting language for a state bill that would nullify the Nashville ordinance.
Under the guise of “fairness,” local governments nationwide are introducing and passing similar nondiscrimination laws at an alarming pace — with devastating results. Once passed, these measures mandate special protections based on individuals’ professed or perceived sexual orientation or “gender identity.” These protections not only affect employment law, but everything from public restrooms to rental contracts. Once codified, judges, activists and legislatures use these statutes to not only justify same-sex marriage, but also to clamp down on businesses and individuals who espouse deeply held religious convictions about homosexuality.
In January, with an action plan in hand, Fowler called together prominent local businesses — many of which were already subject to the ordinance — to form a coalition of support for the new legislation.
“Essentially, our bill forbade local governments from redefining what a ‘discriminatory practice’ is in Tennessee,” said Fowler. “No local government may impose upon a business a definition of a discriminatory practice that is broader than what the state law allows.” In this case, Tennessee’s nondiscrimination law did not include sexual orientation or gender identity.
“What if a construction company that does all of its business in an adjoining county wants to expand to Nashville because they can do a good job and bring employment to the city?” Fowler asked. “Would it have to change the entire employment policy for this one job? That kind of regulation discourages intrastate commerce.
“Businesses do not want to expand into new communities only to find that they are subject to laws that — had they been in place at the time of expansion — would have kept them from breaking ground there,” he added. “Businesses need certainty.”
In fact, some of the businesses wanted to take the bill even further — rolling back other burdensome local government mandates, such as certain health benefits and minimum-wage requirements. When submitted in the legislature, HB 598 ended up much broader than when initially drafted. But Fowler thought it was even better.
Word of the original coalition meeting and the intended bill was leaked to the press, and opposition quickly mounted. The Tennessee Equality Project (TEP), whose goal is to “fight any legislation in the State of Tennessee that would endanger the rights of gay, lesbian, bisexual and transgender citizens,” was the primary opponent.
TEP claimed the bill was crafted by a “radical, faith-based organization” that was biased against homosexual and transgender people; thus, the members of the coalition should be considered “out of step” with most Americans. It engaged a lobbyist and immediately began generating emails and phone calls urging lawmakers to oppose the legislation.
The first time around, the opposition succeeded — but by only one vote. HB 598 failed, on a technical amendment, to make it through a House subcommittee, led by a GOP majority. Part of the reason, advocates now say, was the bill’s broad reach. A few lawmakers were uncomfortable voting for a bill that included such a broad-sweeping revision of local mandates on businesses — even though the business community had asked for such language.
Fowler and colleagues went back to the drawing board. After consulting with state Rep. Glen Casada, the lead sponsor, as well as other key legislative leaders, they decided to go with the proposal in its original form, known as HB 600. The pared-down version was more cut-and-dried, yet still stringent enough to nullify the Nashville ordinance.
Before the second round, Dr. Richard Land, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, called the Tennessee Baptist Convention to help galvanize a grassroots effort to support the bill. Fowler said cooperation and engagement from Baptist pastors across the state was pivotal. This time, House committee members who had voted against the technical amendment to HB 598 began receiving polite but firm encouragement from their constituents, as well as their pastors.
By the time HB 600 came before the same subcommittee, three lawmakers, who had previously voted against HB 598, voted in favor of the revised HB 600. Fowler knew that once the bill made it through subcommittee, it would likely pass the full House. Indeed, on May 18, the House voted in favor of HB 600, 73-24, and sent it to the Senate.
But the Senate version, SB 632, quickly hit another hurdle. Citing too much controversy over other bills he had introduced, including one on Sharia law, the bill’s chief sponsor backed out the day before it was to come before the State and Local Government Committee. With the legislative session coming to a close, Fowler was left without a senator to shepherd the bill.
“That’s the time when all the major bills tend to come to a head,” Fowler said. “Generally, you [can] have great difficulty finding anyone who wants to take on and learn about the intricacies of a new bill, especially one so controversial.
“But that’s when Sen. Mae Beavers stepped in.”
Beavers, a longtime pro-life advocate and friend of family values causes, sponsored the bill and helped secure the vote of all six Republican committee members, who passed it on a 6-3 vote. The full Senate soon followed suit, passing the bill, 21-8, and Gov. Bill Haslam signed the bill into law on May 23.
Ironically, most of the pressure against the bill came after its passage. The national Human Rights Campaign and the National Gay and Lesbian Task Force got involved late in the game, urging people to tell the governor not to sign it. Threatening economic harm to businesses associated with the Chamber of Commerce, they eventually convinced the Chamber to pull its longstanding support of the bill — on the day the governor signed it into law.
One state senator has already filed a bill to repeal the law when the legislative session resumes in January. The American Civil Liberties Union also filed a lawsuit in state court, alleging that the law was born out of an animus toward gays and lesbians.
“We know the battle isn’t over,” Fowler said. “We expected the opposition would continue after the bill was signed, and that they would file a lawsuit.
“We will continue to persevere.”
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Ashley Horne is the federal analyst for CitizenLink.