Tennessee is on an all out war on gay people. The Tennessee Senate passed the "don't say gay" bill that prohibits teachers from teaching anything about gay people. If this becomes law it will be challenged in courts, most likely on First Amendment grounds, in a Federal court environment that is growing increasingly hostile to homophobic laws.
But it's the Supreme Court case that created shift in the judiciary's perspectives on gay rights, that Tennessee will, most likely, be learning a lot more about in the coming months, if not years. That case is Romer V Evans, and today, Tennessee passed a law that directly challenges the ruling in that case. Given the Tennessee legislature's insistence that no one in Tennessee should know about gay people or gay things, I am guessing they passed the law in arrogant ignorance of Romer.
Well, Tennessee, despite your new law you are about to learn some gay history.
Early in Obama's term there was a great deal of frustration and anger coming from the gay community, particularly the gay community here at Daily Kos because Obama sent an emissary to speak to a gay rights group who was ignorant of the two biggest gay rights cases, Romer and Lawrence. Some who defended the move said that it didn't matter, that Romer and Lawrence just weren't that big of a deal to anyone who wasn't gay. Gay people, it was said, should just accept that not everyone, even presidential emissaries, needed to know what legal rulings affected gay people.
I am not a lawyer, as they say. But I most certainly know that Tennessee has violated, in the very least, the spirit of Romer. Maybe I only know that because I am gay. But Tennessee could've saved itself lots of heartache and court costs if it knew a thing or two about gay history, and if you will, gay law. In other words, if they said gay in Tennessee classrooms perhaps Tennessee legislators wouldn't have made such an legally ignorant decision as to pass the law they did today.
But let's go back to 1992. That year Colorado voters passed an initiative called "Amendment 2." Amendment 2 purported to deprive gay people of anti-discrimination protections they earned at the local level in Colorado, most notably in Aspen, Boulder, and Denver. The case went to court, first state court and then on to the US Supreme Court. Until Romer v Evans, there had been no action from any branch of federal government recognizing LGBT persons as full citizens due equal protection of the laws. In fact, no Supreme Court ruling even acknowledged that gay people had a right to privacy (i.e Bowers v Hardwick).
Amendment 2 was so oppressive towards gay people that Justice Kennedy, writing for the court wrote some of the most stirring passages in favor of gay equality and against anti-gay legislation. Kennedy described the impact of the law: Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres.
Kennedy, for once and all, dismantled the argument that gay rights were "special rights":
In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.
But Kennedy also set the groundwork for future gay and civil rights legal cases:
First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.
The bolded is exceptionally important. When law is made in such a manner that it is "inexplicable by anything but animus toward the class of people it affects" it is constitutionally impermissible.
And of Amendment 2 Kennedy continued:
It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.
And Kennedy concludes:
We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.
If Tennessee legislators knew what some believe is unimportant to know, what shall remain unmentionable, would they have ever passed the law they passed today?
In response to an ordinance banning LGBT discrimination in Nashville, the Tennessee legislature has passed a bill that bans all cities and counties from enacting non-discrimination ordinances.
The bill prohibits localities from adopting all anti-discrimination laws, including those based on race, religion, sex, and age. The Human Rights Campaign says the Tennessee legislature took action on the bill after Nashville's gay-inclusive law was recently enacted. ~~~link
That's right. The state of Tennessee passed a law that is in direct contradiction with a Supreme Court ruling written just 15 years ago where the Justice who wrote the opinion is still on the court, and still has the majority on this issue. Why would they do that?
Don't say gay. Say stupid.