Image via NashvilleScene.com

On Martin Luther King Day, an employee of a Nashville music venue, Rocketown, that bills itself as a Christian-based non-profit youth outreach facility wore a band t-shirt to work.  This shirt, designed by a band that had played at Rocketown, also voiced support for same-sex marriage.  That same day, he was fired . . . after working there for seven years.  The employee claims that he was fired because he wore a shirt supporting same-sex marriage, which contradicts Rocketown’s Christian mission.  Rocketown’s extended its mission to its employees’ online social media presence, saying in its employee code of conduct that online posts “need to represent what we as the Rocketown community emulate.”  An image of the alleged “employee incident notice,” written up in reaction to this “violation” of the code of conduct, indicates that the employee’s support of same-sex marriage may in fact be the reason he was fired, but Rocketown, unsurprisingly, refuses to comment on the issue.

Regardless of whether this particular employee was fired because he supports same-sex marriage, it points to an important issue – could he have been fired because of his beliefs regarding same-sex marriage?  In Tennessee, the answer might be “yes.”  The Tennessee Code, section 4-21-102(4), defines “discriminatory practices” as “any direct or indirect act or practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, or any other act or practice of differentiation or preference in the treatment of a person or persons because of race, creed, color, religion, sex, age or national origin.”

The metro government of Nashville and Davidson County noticed that this definition was incomplete since it did not protect citizens against discrimination based on sexual orientation.  In an attempt to fill this gap, it passed and Mayor Karl Dean signed Ordinance No. BL2009-502 in September 2009, stating, “It is unlawful for the metropolitan government to fail or refuse to hire or promote, or to discharge any individual, because of such individual’s race, religion, creed, gender, gender identity, sexual orientation, national origin, color, age, and/or disability.”  The state of Tennessee under Governor Bill Haslam responded in May 2011 by passing the poorly named “Equal Access to Intrastate Commerce Act,” (T.C.A. § 7-51-1802) which prohibits local governments from passing an ordinance that changes the definition of “discriminatory practices” listed in the Tennessee Code (referenced above).  This, in effect, invalidated Nashville’s ordinance prohibiting discrimination on the basis of sexual orientation, leaving those discriminated against because of sexual orientation (or disability, incidentally) without the protection of the anti-discrimination laws.

Though it is not clear whether the Rocketown firing amounts to discrimination, or on what that discrimination may be based, this may be a good time to re-evaluate Tennessee’s anti-discrimination laws.  As one commenter noted at the time the “Equal Access” bill was passed, this bill may be invalidated under the precedent set by the Supreme Court in Romer v. Evans. In Romer, the Supreme Court invalidated a Colorado constructional amendment which repealed local laws prohibiting discrimination on the basis of sexual orientation and, further, prohibited any “executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians.”  The Court determined that this amendment violated the Equal Protection Clause because it identified people by a single trait and then broadly denied them protections.  The Tennessee bill avoids this problem in part because it does not explicitly state that homosexuals, gays, or lesbians cannot receive protection under the law.  Instead, the “Equal Access” law implicitly achieves this same result.

Whether this employee will raise a discrimination claim, and whether this will lead to a legal challenge of Tennessee’s anti-discrimination laws, remains to be seen.  However, I am sure that many Tennesseans will agree that Tennessee’s anti-discrimination laws are ripe for review.

Amelia McKeithen

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