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CAN-DO bill: A flawed Republican rationale

Rep. Glen Casada's statewide legislation threatens to overturn Nashville's non-discrimination ordinance

May 1, 2011 Victor Stepien   Comments

Shortly after the so-called ''CAN-DO'' bill in Metropolitan Nashville was passed, Rep. Glen Casada (R-Franklin) seemingly vowed to repeal it via a statewide Rep. Glen Casada has introduced legislation in the Tennessee state government that would nullify Metro Nashville's non-discrimination ordinance.legislation that would remove sexual orientation and gender identity from anti-discrimination policies. While the main argument – a concern for the economy – appears to be a noble one at a time of financial turmoil, it runs counter to mainstream ideas about an openly gay workforce, as analyzed by Kirk Snyder in 2006's The G Quotient: Why Gay Executives are Excelling as Leaders... And What Every Manager Needs to Know.

Christian Berle, the Deputy Executive Director of the Log Cabin Republicans, a GOP-affiliated, pro-business LGBT advocacy organization, suggests Rep. Casada may be fighting a losing battle. For Berle, Romer v. Evans (1996), a Supreme Court decision that banned any city, town, or county in the state of Colorado from using the ''special rights'' argument against LGBT people, serves as a precedent to hamper Casada's effort. However, Dr. Carol Swain, a socially conservative Professor of Law and Political Science at Vanderbilt University, and the faculty adviser for the Christian Legal Society, opines, ''I believe it is constitutional because it does not single out or unfairly burden any particular group.'' Indeed, the bill does not explicitly mention the stripping of rights for a protected class. Instead, it shrewdly attempts to redefine protected classes for the entire state of Tennessee, encompassing Nashville without focusing on it.

While the repeal of those anti-discrimination tenets may appear malicious to some, Rep. Glen Casada himself claims this is solely a pro-business move on his part. He explains, ''The goal is to create a uniform environment across the state, similar to what the interstate commerce clause does for our country.'' Dr. Swain echoes him when she adds, ''it is a reasonable response to the activist (sic) nature of local governments that have passed legislation that imposes a greater burden on private businesses than what existing state and federal laws require.'' She goes on to explain, ''it is designed to bring local governments into conformity with existing state and federal laws.''

Asked about whether Rep. Casada, who attends Brentwood Baptist Church, drew inspiration from the Bible, particularly 1 Corinthians 5:9-13, a passage that encourages tough love for so-called ''immoral'' members seen as bad fits for a given group by repudiating them, he dismisses this with a simple, ''this bill was drafted on my belief in limiting government mandates upon businesses and not my interpretation of scripture.''

Dr. Swain adds, ''The proposed bill is not designed to punish homosexuals. If anything, it is designed to protect small businesses from what they see as burdensome and possibly unconstitutional regulations that affect their ability to remain competitive in the marketplace.'' Still, the bill is supported by the Family Action Council of Tennessee, an organization that claims to ''promote and defend a culture that values the traditional family.''

Dr. Barry Bruce, a Vanderbilt Professor of Management and Sociology, and author of Speechless: The Erosion of Free Expression in the American Workplace, seems to suggest this may be much ado about nothing. He reminds us that while the bill ''puts a requirement on city contractors to have non-discrimination policies regarding sexual orientation and gender identity, it doesn't make discrimination itself illegal.'' Moreover, he does not see equal workplace protection under the law spread to all and sundry businesses any time soon, given the upcoming metro elections when legislators may shy away from ''controversial'' issues.

He adds, ''Discrimination is often very difficult to prove in any form (race/gender/religion).'' Thus a given business may have an anti-discrimination code of ethics and choose not to enforce it, so long as it is too difficult for employees to defend themselves. Furthermore, as the bill does not require ''Christian'' businesses to subscribe to the new requirements, only time will tell whether regular businesses will choose to rebrand themselves as ''Christian'' or not.

Perhaps the answer to this conundrum would be to amend the United States Constitution with "gender identity" and "sexual orientation." After all, if those two tenets are seen as too burdensome on businesses, so should other criteria like race, creed, color, national origin, age, or sex. Beyond this libertarian utopia, there may be a place for government oversight and legislative regulations over the private sector. As Christian Berle puts it, ''Passing employment non-discrimination provisions, whether it be in Tennessee or at the national level, is the best practice for all American workers."

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