The Business of Discrimination

Apparently there wasn’t room for an accurate headline, like “Bill authorizes bigotry and discrimination,” so the good folks down at 1100 Broadway went with “allows faith objections” instead. Please. The measure (SB 2566) described in the story, which comes before the Senate Judiciary Committee this week, is nothing short of a license for private enterprise to make anti-LGBT hate into a viable business strategy.


Desperate to halt political and social momentum toward widespread acceptance of same-sex unions, sponsors of the bill want to use public policy to ensure that businesses can refuse service “related to the celebration of any civil union, domestic partnership, or marriage not recognized by the state” if it violates “sincerely held religious beliefs…regarding sex or gender.” Translation: if your religious beliefs cajole you into hating gay people, you are free in running your business to deny them employment, goods, services, or accommodations without fear of being sued by private parties or acted against by government under any kind of local nondiscrimination law or policy.

The Tennessean story neglects to mention that SB2566 (and its House companion HB2467) are patterned on a model bill developed by an offshoot of the D.C.-based Ethics & Public Policy Center, which fashions itself a think tank “dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy.” We’re not sure how Judeo-Christian principles fit in, but this is an organization that confuses bigotry with freedom, at least to judge by this declaration by the EPPC’s president in testimony before the U.S. Commission on Civil Rights last year: “The sweeping application of non-discrimination principles poses an increasingly severe threat to civil liberties.”

Although the bill purports to be about gay marriage, not about being gay generally, Mark Joseph Stern at Slate (writing about a similar bill introduced in Kansas) points to the “breathtaking” potential sweep of these bills:

The law’s advocates claim that it applies only to gay couples—but there’s no clear limiting principle in the text of the bill that would keep it from applying to gay individuals as well. A catch-all clause allows businesses and bureaucrats to discriminate against gay people so long as this discrimination is somehow “related to, or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement.” This subtle loophole is really just a blank check to discriminate: As long as an individual believes that his service is somehow linked to a gay union of any form, he can legally refuse his services. And since anyone who denies gays service is completely shielded from any charges, no one will ever have to prove that their particular form of discrimination fell within the four corners of the law.

The Kansas version passed their House but was derailed when the Kansas Senate’s GOP leader announced last week that she doesn’t support it because she and her members “don’t condone discrimination.” Fancy that. Your move, Beth.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.

Nothing Says Monday Like Bigotry in Congress

"Federalism, dude."

“Federalism, dude.”

The U.S. Senate votes today on the Employment Non-Discrimination Act (ENDA), a common-sense measure that would outlaw employment discrimination on the basis of sexual orientation and gender identity. ENDA has been floating around Congress in various forms for almost two decades, and a version of it actually passed the House by a pretty good margin in 2007. In today’s action Democrats need five Republican senators to avoid a filibuster, and as of this morning five sensible GOPers have signaled support for ENDA. Might they be joined by either of Tennessee’s supposedly not-right-wing-crazy senators? Unlikely.

Lamar Alexander is already on record with his disdain for the rights of LGBT workers, as Politico reported last week:

Sen. Lamar Alexander (R-Tenn.), a bipartisan deal-maker who faces a primary challenge in his 2014 reelection bid, said the bill amounted to “too much federal overreach.” … “One of my guiding principles is federalism,” Alexander said. “I don’t think we need an additional federal law to regulate it.”

How refreshing — federalism as a pretense for bigotry! Where have we seen that dance before? Given that we already have federal law engaging in regulatory “overreach” with its ban on employment discrimination on the basis of race, color, religion, sex, and national origin, one must conclude that Lamar stands firmly for repeal of Title VII of the Civil Rights Act of 1964. Top that for GOP primary season unhingery, Joe Carr!

I can find no clear evidence of Sen. Bob Corker’s intentions on today’s vote, but in an op-ed over the weekend, Chris Sanders of the Tennessee Equality Project surmised that Corker won’t support ENDA either. Our two allegedly business-friendly senators might want to get on the same page with Apple CEO Tim Cook, who backs ENDA with the observation that “embracing people’s individuality is a matter of basic human dignity and civil rights.”

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.

Required Reading for State House Lawmakers

atfdudeDevoted followers of conservative mayhem at the Tennessee state house will recall one of the finer moments of legislative insanity last winter: a bill aiming to nullify federal firearms legislation by making it illegal for federal agents to enforce those laws in Tennessee. In the wake of an AG opinion that the measure was probably unconstitutional and indications that Gov. Bill Haslam was disinclined to sign the thing, the bill narrowly failed to make it out of committee back in February.

GOP-dominated state houses elsewhere have pushed this gun law nullification thing further along, with Missouri’s in the spotlight this month. That state’s legislature overwhelmingly passed a nullification bill earlier this summer, which Gov. Jay Nixon promptly vetoed. Now the show-me legislature is planning a vote to override the veto when it reconvenes next week. A successful override will require fewer votes than there were in favor the first time around. (And it should be noted that while the bill was largely a GOP effort, it passed with the support of 11 Democrats in the Missouri House and 2 in the Senate.)

So with the Missouri override vote impending, The New York Times runs an op-ed today titled “The Limits of Nullification.” In a state legislature like Tennessee’s, where no failed bad idea isn’t worth bring back for another go, this is a piece that lawmakers need to read for its persuasive case against nullification:

Yes, state legislatures or governors can assert that a federal law offends the Constitution. But as James Madison wrote in his Report of 1800, such declarations are “expressions of opinion” for “exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect.” In assessing constitutionality, our system of governance recognizes one Supreme Court, not 50 individual states. Strangely, if nullification proponents had their way, Chicago’s gun ban, which the Supreme Court invalidated in 2010, might still be in effect.

The Times op-ed is compelling not just for its substance, but also on account of the impeccable Second Amendment-loving credentials of its author: Robert Levy, chairman of the conservative-libertarian Cato Institute and a guy who was plaintiff’s co-counsel in the landmark 2008 Supreme Court case D.C. v. Heller upholding individual gun rights. For any Tennessee lawmaker thinking of trying again on nullification (I’m looking at you, Mae Beavers), Levy’s closing words should change your mind: “I fully support those who see risks in the expansion of federal power, particularly when it comes to intrusions on basic rights like gun ownership. However, to defend those rights, we can’t begin by flouting the very document that inspires that fight in the first place: the Constitution.”

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.

Euphemism of the Month: Fairness in Ticketing

ticketscalpingWhile there are some positive aspects of the so-called Fairness in Ticketing Act working its way through the Tennessee state legislature, it is disappointing to see Tennessee Performing Arts Center CEO Kathleen O’Brien embrace the bill so wholeheartedly in a Tennessean op-ed this morning. Railing against a ticket “resale market rife with bad actors” who “make lots of money at the expense of real fans,” O’Brien wants us to see TPAC as part of a coalition working to give consumers “transparency and protection and the opportunity to buy the best tickets at face value prices.” These are lovely goals, but ones that the bill will do very little to accomplish.

The legislation (SB609/HB1000) does have some salutary features. Requirements that the resellers (be they ticket brokers or online marketplaces such as StubHub) disclose on their websites the face value and exact location of seats offered for sale, and say whether or not tickets are actually in their position and ready for delivery, strike me as eminently reasonable. Regulating the industry by having brokers register with the state may also be an improvement, although the requirement that a registered broker “maintain a permanent office or place of business in this state” seems a tad twentieth century.

As originally introduced it was a terrible bill, but the bill may be shedding some of its worst parts. A Senate committee last week approved an amended version that omits absurd provisions in the original bill eliminating ticket holders’ property rights and giving venues and original ticket issuers (such as Ticketbastard) unbridled power to monopolistic control over the resale market. A House committee takes up the measure later this week.

Even with the worst parts amended out, the bill still does nothing to meet the promise by TPAC’s O’Brien that it will help fans obtain the best tickets at face value prices. As news reports have amply documented, event promoters and ticket issuers not only don’t object to scalping, they are at times in cahoots with scalpers. The industry trumpets paperless ticketing as the answer to scalper bots that scarf up all the good seats when a show goes on sale, but most fans see paperless ticketing as an enormous inconvenience that makes it very cumbersome to do what you want with the ticket you buy. Lobbyists for the secondary ticket industry (StubHub and brethren) point out that that if Ticketmaster really wants to lessen the impact of bots on ticket buying, as they righteously claim, then they could easily inform authorities and request prosecution under an existing Tennessee law — but they never do.

On both sides of this issue we find well-funded corporate interests pretending that this is really about consumer protection, when it’s actually about the protection of each side’s business model. As usual, the truth lies somewhere in the middle. The legislation as amended in the state Senate would inject some consumer-friendly transparency into the secondary ticket market, but does nothing to dilute the excesses of event promoters and original ticket issuers whose claims to be looking out for fan interests ring hollow. A horrible bill is apparently being amended into a weak bill. Even if it passes, you still won’t get those highly sought tickets you want at face value unless you happen to be very very lucky on some given Saturday morning at 10:01 am.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.

Definitely A Trend

No longer just a surge.


Hey Memphis, You’re Doing This Parks Thing Wrong

confedparkThe latest effort by Republicans in the Tennessee legislature to throw local government control under the bus comes in the form of the Tennessee Heritage Protection Act of 2013, slated for a vote in the state House later today. Rep. Steve McDaniel says the point of his bill, which bars changes to just about anything named for or commemorating military history is “to preserve our history.” The real aim, of course, is to prevent further moves like those in Memphis rebranding parks away from names that celebrate the Confederacy.

The sweep of McDaniel’s bill is breathtaking:

No statue, monument, memorial, nameplate, or plaque which has been erected for, or named or dedicated in honor of, the French and Indian War, American Revolution, War of 1812, U.S.-Mexican War, the War Between the States, Spanish American War, the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam War, Operation Urgent Fury (Grenada), Operation El Dorado Canyon (Libya), Operation Just Cause (Panama), Operation Desert Shield/Desert Storm (Persian Gulf War I), Operation Enduring Freedom (Afghanistan), and Operation Iraqi Freedom (Persian Gulf War II), and is located on public property, may be relocated, removed, altered, renamed, rededicated, or otherwise disturbed.

The other key paragraph says that “no statue, monument, memorial, nameplate, plaque, historic flag display, school, street, bridge, building, park, preserve, or reserve” that has been named for any historical military figure, event, or organization can be renamed.

Aiming to get ahead of this bill, the Memphis City Council in recent weeks has renamed multiple parks. Nathan Bedford Forrest Park is now Health Sciences Park (that’s catchy), Confederate Park is now Memphis Park, and Jefferson Davis Park has become Mississippi River Park. Interestingly, Memphis NAACP branch head Keith Norman opposes name changes for historically themed parks: “We believe that history should be kept as history.”

The Memphis City Council is missing a real opportunity here. There is a way they could rename parks to end glorification of racism and the Confederacy, retain the historical references that McDaniel and Norman want preserved, and send a “go to hell” message to state lawmakers gleefully dismantling local control, all at the same time. It’s simple: give the parks names that tell it like it is.

So, for instance: “Racist Nathan Bedford Forrest Park.” “Blow Me Jefferson Davis Park.” And how about “Ashamed to Have Been Part of the Confederacy Park.” Perhaps while they’re at it the good folks in Memphis can find a patch of grass to dedicate as “Ronald Reagan’s Illegal Grenada War Park.”

So get to work, Memphis City Council. And then go ahead, Rep. McDaniel, pass your bill. Let’s preserve us some real history.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.

Hypocrite of the Week

ketronThe world according to Tennessee state Sen. Bill Ketron: It’s okay to let local communities make their own decisions when it comes to deciding who can sell what, but it’s not okay to let local communities make their own decisions when it comes to deciding who can employ whom.

How else to reconcile Ketron’s views on discriminating tastes with his views on discrimination? Discussing his proposed legislation allowing voters in individual municipalities to decide whether to allow wine sales in grocery stories, Ketron told a news conference that “This bill puts the decision directly in the hands of the voters, where it belongs.”

Yet Ketron cheerfully voted with his fellow state house bigots back in 2011 to pass Senate Bill 632 as a way to bar local governments and local voters from outlawing discrimination based on sexual orientation. Cloaking their anti-gay animus in a business climate pretext, the “Equal Access to Intrastate Commerce Act” was pitched as something needed to help businesses enjoy regulatory consistency. Though pushed by the Tennessee Chamber of Commerce, SB 632 was opposed by a number of large corporations.

For Ketron, selling hooch is an issue you put “directly in the hands of the voters, where it belongs.” Expanding and defending individual rights, on the other hand, is something he’d rather take from the hands of the voters, where it doesn’t belong.

A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.