Thursday, September 20, 2012

Dogs, Ponies, and a Shelved Initiative: The Sexual Orientation Vote for Dummies

How administration pressure and attorneys’ advice combined to force a delay — and a possible, but not inevitable, defeat for an anti-discrimination proposal down the line. (REVISED AND EXTENDED)

Posted By on Thu, Sep 20, 2012 at 11:12 PM

The oft-used term “dog and pony show” has never been precisely defined, but it usually betokens some kind of staged sham event that is ballooned all out of proportion to its reality content. It’s a case of “you know one when you see one.”

By the time it was over on Tuesday, the City Council’s hearing on a non-discrimination ordinance, which may have begun as something real, had taken on many of the appearances of a dog and pony show.

For a whole week, at minimum, and in most cases for much, much longer, everybody who crammed into the cavernous auditorium at City Hall on Tuesday was aware that a showdown was pending on the issue of including Lesbians, gays, bisexuals, transsexual, and transgendered people within the text of a non-discrimination ordinance that was about to get its third and final reading.

The prospect of such an amendment, which Councilman Lee Harris had made it clear he would introduce if he could amass enough votes (7 members of the 13-member Council) to pass it, was the very reason why a large group of opponents, headed by the Rev. Steve Gaines of Bellevue Baptist, had come to the auditorium, it was the reason why an even larger number of members and supporters of the Tennessee Equality Project, headed by Jonathan Cole, were there, and it was certainly why the media, which had been writing and broadcasting about it for days, were there in droves.

But Council members themselves, both pro and con, felt compelled — whether motivated by Roberts’ Rules or by the Stanislavsky Method — to pretend that no such issue was at hand, even as audience member Gaines came to the well to deliver his philippic against the amendment.

No sooner had he launched than he was interrupted by a colloquy between Council chairman Bill Morrison and personnel committee chair Harold Collins, the thrust of which was that no amendment regarding sexual orientation had been introduced and thus Gaines or anyone else choosing to speak on it would be out of order.

Technically, this was so, and as an instance of forthrightness, it certainly trumped later protestations from the likes of Councilman Bill Boyd and a pair of attorneys, Allan Wade representing the Council, and City Attorney Herman Morris for the administration — all of whom would imply or straight-facedly declare at strategic points that the emergence of the sexual orientation matter or issues concerning it on Tuesday had been a complete surprise to them.

On cue, Harris would declare that he did indeed have an amendment on sexual orientation, which he introduced with some appropriately pointed rhetoric, casting the issue as one of “tolerance and inclusion,” as the kind of workplace protection that other Tennessee cities and even so conservative a place as Salt Lake City had already adopted, something so mundane and overdue as to be “the bread crumbs of a civil rights struggle:

He continued in that vein:



Between Harris’ pronouncement and that of Gaines came a brief interrogatory by Council member Wanda Halbert, whose vote was considered one of the unknown quantities on the issue.

For the first of two crucial times on this day, Halbert served as a kind of Greek chorus within the developing drama.

Her question, posed as that of a mere information-seeker, served the purpose of clarifying that the language of Harris’ amendment had been softened. “Sexual orientation” is all it added to his previous listing of national origin, age, disability, and ethnicity — a fact that would later prompt TEP’s Cole to lament the omissions of specific categories

Then came the turn of Gaines, who in the course of six minutes cast himself as a believer in civil rights and in the fact that homosexuals were as “precious” to the Almighty as straights but quoted the Bible as his witness to the fact that homosexuality was “wrong” and suggested that the true purpose of the amendment was to advance some unspecified larger homosexual agenda.


After that spokespersons for the two sides would present competing versions of righteousness to salvoes of applause from their respective support galleries. It became progressively obvious that various members of the Council whose constituencies, present or imagined future tense, contained large populations on both sides of the issue would themselves be conflicted.

At some point after much oratory had been heard in both directions, Janis Fullilove, who, with Shea Flinn, had been one of the earliest Council supporters of workplace protection for gays, made the point that current federal protections against discrimination seem not to apply to issues of sexual orientation, a lynchpin of the argument that the specific language of Harris’ amendment was needed.

But shortly it was time again for an intervention from the Chorus. Enter Halbert, who had a new question, one that would turn the tenor of the debate around so decisively as to seem scripted. What had the City Charter to say on the question at hand?, she wondered of both Council attorney Allan Wade and City Attorney Herman Morris.

A parenthesis: Unbeknownst to most observers but suspected by some (notably Cole of the TEP, who would voice suspicions afterward) the city administration of Mayor A C Wharton was by this time actively attempting to shape developments. According to a source in a position to know, the Mayor had become concerned that action by the Council on the anti-discrimination ordinance might set a precedent for expansion of the Council’s authority in other areas of the city agenda and tilt the balance of power.

Indeed, said the source, Councilman Jim Strickland, who already had his concerns about the divisive aspects of the controversy, was also wondering if a completed Council action would extend the Council’s authority. Upon his first election in 2007, he had studied the Charter, concluded that too much power had been needlessly waived by the city’s legislative body, and, in an op-ed for the Flyer, had made the case for reclaiming it. Like Wharton, but from an opposite viewpoint, he may well have seen the prospect of dislocations in the proposed amendment, but also opportunity.

Anyone going to the Council’s website to review Tuesday’s meeting there will notice that, at the moment that Agenda Item #17 (the anti-discrimination matter) came under discussion, Strickland went, for whatever reason, to huddle briefly with Wade — a conversation that was unrelated, he insists, to any of the bombshells that would come later on from the Council attorney. And there is no reason to doubt his commitment to Harris' amendment.

Between that early point in proceedings and Halbert's asking her question a memorandum had been circulating amongst the Council members. It was on the basis of this memorandum, which came from City Attorney Morris, that Wade now delivered a somewhat roundabout response to Halbert’s question, the kernel of which was: To add the language that Harris wanted might require more than an ordinance, it could indeed transcend the currently active non-discrimination language and depart from legal precedent to the point that it needed an amendment to the charter itself.

And that meant one thing: a referendum, which brought with it the certainty of delay and the possibility, maybe even the likelihood, of rejection.

In his turn, Morris the author of this view, would also be summoned, and he reinforced it strongly. Either the proposed sexual-orientation amendment would violate the charter or it would have no effect at all.

There was an apparent disingenuousness about both these attorneys’ presentations that was breathtaking. Each of them averred that he had not so advised the Council previously because he had not been asked to (a contention which, in itself, is reminiscent of a vintage Abbot-and-Costello routine: “Why didn’t you tell me about that bomb behind me about to go off?” “Because you didn’t ask me!”). Each professed not to have even thought about the issue of the amendment’s legality until he was asked about it that day.

Yet Cole would say that he and other TEP members had reviewed — and cleared — serial drafts of a sexual-orientation amendment with the City Attorney’s office. And various Council members would say that they had been discussing aspects of the pending legislation with Wade for weeks. “Yes,” Wade would acknowledge when asked about that, “but all of that was about procedural matters; they never asked me to rule on its legality.” Abbott-and-Costello, again. The Council attorney's defenders say, however, he had been genuinely blindsided by the argument in Morris' memo, which cited selected portions of the city charter.

There is good reason to believe in any case, that both lawyers were well aware of the Mayor’s attitude by this time.

Although Halbert, in her brief colloquy with Wade, had chided him for not having apprised the Council of this opinion well in advance of the current controversy, she in truth seemed more relieved than vexed by his answer. Indeed, it was obvious to everyone almost immediately that it was now possible for any Council member who was tempted both ways on the anti-discrimination issue to have it both ways: Vote for the amendment, and then vote for the delay -- which entailed the prospect of a referendum.

The idea of proceeding that way was too equivocal for some. Myron Lowery, for one, was virtually Churchillian in resistance. He wanted, above all, to preserve the prerogatives of the Council and to decide the issue one way or the other then, without further delay. Let any legal testing proceed from the standpoint of a fait accompli.

Along the way, Shelby County Commissioner Steve Mulroy had weighed in as a lawyer with a view antithetical to those of Wade and Morris. Not only were the city charter’s existing strictures on discrimination a floor and not a ceiling, any suit (for the specter of litigation had been invoked by the two official attorneys) would be dismissed for lack of standing unless it came from the administration itself.

Mulroy taking his turn
  • JB
  • Mulroy taking his turn

But caution would prevail.

The proposal, when it came, was for a 30-day delay, during which the exact legalities of the case could be further researched, and it came from Shea Flinn, who has always been in the vanguard of initiatives to protect gays, and it seemed clear that his motive was the straightforward one of encasing the amendment in a formal structure so as to preserve it for action later on.

Before that vote, though, was the key one in favor of adding Harris’ “sexual orientation” language.

Seven members voted aye — Harris, Flinn, Fullilove, Lowery, Strickland, Ed Ford, and (surprise!) Reid Hedgepeth. The first four of these were slam dunks, Strickland had been (and remained) ambivalent, as had Ford, whose voice vote on roll call was muted and next to unintelligible. Hedgepeth was a late flip, a conservative convert to the cause, a fact that is guaranteed to enamor one to activists on the other side and did so in this case.

Hedgepeth would later put out an all-points email calling the amendment “the right thing to do” and citing his conscience, the New Testament, and Fred Smith as authorities for his vote — the decisive one, as it turned out. (And very likely the decisive one for a future resurrection of the ordinance; Hedgepeth does in fact represent the conservative, business side of the community, and his vote may very well indicate a seismic shift in sentiment there.)

Halbert, who had clearly been a case study in conflictedness, chose not to vote.

The five nays were Boyd, Collins, Morrison, Joe Brown, and Kemp Conrad.

Just as important, of course, was the vote in favor of a 30-day delay. Tellingly, the nine-member majority in favor of it included all of those who had voted against the amendment itself, plus Flinn, Ford, Halbert, and Strickland. Fullilove, Harris, and Lowery voted no, and Hedgepeth abstained.

The bottom line of the outcome was that the sexual orientation proposal was laid on the shelf. An even bottomer line is that, if it is slated for a referendum, an expensive, contentious one that most likely would multiply and magnify the divisions evident during council debate on the issue, the proposal will most likely fail.

It should be said that Flinn, whose exertions on behalf of a non-discrimination ordinance are of long standing, believes strongly that the 30-day delay and the concomitant legal research will work in the opposite direction, to disallow the need for a referendum and allow instead for a successful revival of the ordinance.

Should, however, the whole thing merely remain out of sight, out of mind for the foreseeable future, that would probably suit the city administration just fine.

Nothing happens by accident, and Tuesday’s outcome didn’t, either.

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