A Sketch Of How Constitution Doesn't Favor Gay Ordinance As A Municipal Innovation - And Response

Thursday, November 14, 2013 - by David Tulis

The media coverage of the 5-4 vote in favor of gay “domestic partnerships” by Chattanooga city government makes me feel the slightness of the law’s arguments against the innovation. After all, human beings are involved, vast passion for equality, tension in the meeting between the measure’s critics and its backers. What does law matter, it seems, in the jubilation of the moment?

Gay sponsor Chris Anderson says a chief benefit of the ordinance of which he is “enormously proud” is that “it makes this city a more competitive employer.

” If media coverage is close to giving us the best of his comments, making the city a more competitive employer is a thin rationale for the extension of what is a private inurement. 

One thing has bothered me about media coverage, especially the Chattanooga Times Free Press. Its reports keep saying that opponents say gay benefits are “against their private belief” which mischaracterizes the Christian position. A fairer way of describing religiously motivated critics is to say something like this: Opponents say benefits for gays “contradicts the teachings of Christianity, which condemns homosexuality.” That would be true, even though some churches support gays. Instead, Christianity is relegated to the realm of “private belief.” How silly it would be to say gays support the measure because of their private belief. 

Let me make no argument today about the law. Rather, let me give you the choicest summations of it as it touches the wildly exciting subjects of municipal corporations, city charters, constitutional interpretation. I mention two facts about Chattanooga’s charter. Many cases I cite are from the late 1800s, but perhaps that is because their authority is undisputed. 

The original case law makes its own argument, and I have arranged these citations to suggest their tendency. Give this exercise a few moments, and draw your own conclusions. Please forgive the legal citations. 

Municipal corporations
Municipal corporations are creatures of the general assembly, which has absolute control over them and may create or abolish them at its pleasure. Elizabethton v. Carter County  204 Tenn. 452, 321 S.W.2d 822 (1958). 

A municipal corporation is a political or governmental agency of the state, which has been constituted for the local government of the territorial division described and which exercises, by delegation, a portion of sovereign power for the public good. Thornton v. Carrier, 43 Tenn. App. 615, 311 S.W.2d 208 (1957) 

The state has absolute control and complete sovereignty over municipalities. Municipalities have the inherent right of self-government, but this inherent right does not go beyond the General Assembly’s control of such right. City of Knoxville v. Bailey, 222 F.2d 520 (6th Cir. 1955). De Caro v. Collierville, 213 Ten. 254, 373 S.W.2d 466 (1963) 

Municipal corporations hold and operate under charters for the public good alone. The charter is the constitution of the local government with powers that must be consistent with the constitution of Tennessee. A charter is the grant of power; from it city government derives its life and vigor; and to its restrictions and limitations the municipality is subject. State v. Sinking Fund Comm’rs, 1 Tenn. Cas. (Shann.) 490 (1875). State ex rel Kercheval v. Mayor of Nashville, 83 Tenn. (15 Lea) 697 (1885) 

Charters must be strictly construed
Cities thus have no powers except such as are given to them by their charters and the general law. Barnes v. City of Dayton, 216 Ten. 400, 392 S.W.2d 813 (1965) 

Municipal charters will be strictly construed, and clear authority for the powers assumed to be exercised under them will be required. The provisions of the charter are mandatory; and, if in conflict with an ordinance, the charter must prevail. Municipalities may exercise only those express or implied powers delegated by the general assembly in their charters or under statutes. Marshall v. Nashville, 109 Tenn. 495, 71 S.W. 815 (1902). City of Lebanon v. Baird, 756 S.W.2d 236 (Tenn. 1988) 

Any fair, reasonable doubt concerning the existence of a power is resolved by the courts against the corporation and the power is denied. All acts beyond the scope of the powers granted are void. Mayor of Nashville v. Linck, 80 Tenn. (12 Lea) 499 (1883) 

Only those powers can be implied from charter language that are essential to the object and purpose of the municipality. The corporate authorities of the city have no power other than that which is for the protection of the city and the good of its inhabitants. City of Memphis v. Memphis Water Co. 67 Tenn. (8 Baxt.) 587 (1876). 

An ordinance may be declared unconstitutional because violative of the spirit of the constitution equally as if in contravention of the words or paragraphs thereof. Nashville v. Hager, 5 Tenn. Civ. App. (Higgins) 192 (1914) 

How to read marriage amendment — relevant in Chattanooga?
In 2006 Tennessee voters approved a marriage protection amendment to the state constitution. “The historical institution and legal contract solemnizing the relationship of one man and one woman shall be the only legally recognized marital contract in this state. Any policy or law or judicial interpretation, purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman is contrary to the public policy of this state and shall be void and unenforceable in Tennessee. If another state or foreign jurisdiction issues a license for persons to marry and if such marriage is prohibited in this state by the provisions of this section, then the marriage shall be void and unenforceable in this state.” 

The constitution is to be construed to give effect to the intent of the people adopting it, as found in the instrument itself, and it is presumed that its language is employed with sufficient precision to convey that intent. Where this presumption prevails, nothing remains except to enforce this intent. Shelby County v. Hale, 200 Tenn. 503, 292 S.W.2d 745 (1956) 

A constitutional provision will be taken literally unless its language is of doubtful import. Courts construe a constitutional provision as written and will not read any ambiguity into it. When the words are free from ambiguity and doubt, and they express plainly and clearly the sense of the framers of the constitution, there is no occasion to resort to other means of interpretation. Shelby County v. Hale, 200 Tenn. 503, 292 S.W.2d 745 (1956). Chattanooga-Hamilton County Hosp. Auth. v. City of Chattanooga, 580 S.W.2d 322 (Tenn. 1979). 

Provisions of the constitution are presumptively mandatory, and no provision shall be construed otherwise, unless the intention that it shall be so construed unmistakably and conclusively appears upon its face. Gouge v. Burrow, 119 Tenn. 376, 104 S.W. 526 (1907)
Every positive directive contains an implication against anything contrary to it, or that would frustrate or disappoint the purpose of the provision. Lynn v. Polk, 76 Tenn. (8 Lea) 121 (1881) 

The constitution must be construed as a whole. The whole is to be examined with a view to arrive at the intent of each part. Effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if practicable, and lean in favor of a construction that will render every word operative, rather than one that may make some idle and nugatory. One part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together. No part can be construed so as to impair or destroy any other part. McKinney v. Memphis Overton Hotel Co., 59 Tenn. (12 Heisk.) 104 (1873). Memphis v. Memphis City Bank, 91 Tenn. 574, 19 S.W. 1045 (1892) 

City government’s charter contains enumerated powers. Title 2 contains 64 enumerated powers, and, at 65 and 66, a grant of general power to pass ordinances not contrary to the constitution “necessary for the health, convenience, safety and general welfare of the inhabitants of the city.” 

Peril for gay ordinance

Domestic partnerships are not in Title 2 among enumerated grants of authority. I see peril for the gay ordinance if it passes, and hope the council persons in favor of it are acting in good faith, given these considerations. 

— David Tulis hosts Nooganomics.com, a talk show 1 to 3 p.m. weekdays at Copperhead 1240 AM, online at 1240wsdt.com. The show covers local economy and free markets in Chattanooga an beyond. 

* * * 

Let's take an impromptu poll:  
1. Which of the following policies would you least support?
A. Obamacare
B. The Affordable Care Act

2. Which of the following local policies would you least support?
A. The Same Sex Benefits Ordinance / Health Benefits for Gay Employees Ordinance / The Domestic Partnership Ordinance
B. The Benefits And Equity Ordinance

The vast majority of Chattanoogans who vehemently oppose Councilman Chris Anderson's proposed changes to the city charter would choose 'A' for both questions. Both 'A' and 'B' are referring to the exact same pieces of legislation.  The ignorance of those who refuse to research facts, place their own religious or bigoted mindsets in a greater category than the rest of humanity, and hide behind your keyboards and monitors to spout false and hateful rhetoric... all of this is simply mind numbing.  

Take your spiteful language, your 'hell, fire and brimstone' threats towards Council members, and the never ceasing need to pull fellow Chattanoogans down to a level beneath your feet...and put that same amount of energy into volunteerism and community efforts. 

On a final note:  Mr. Tulis, congratulations, you seem to have found the ability to copy and paste on a computer. Mark West, I challenge you to encourage those attending your "Public Forum," to bring non-perishable canned food when they arrive for your meeting.  That way at least some true good for mankind can come out of your gathering.    

Justin Strickland


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