Confusion Over City Charter Leads Council to Delay Nondiscrimination Ordinance

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The Memphis City Council voted 7-5 to add an amendment protecting city workers on the basis of sexual orientation to a proposal that updated the city's nondiscrimination policy to include age, disability, and national origin. But the council then voted to delay the amendment for 30 days while the council's legal department decides if the amendment is allowed under the city 's charter.

In a move that council member Janis Fullilove called a "diversion," city council attorney Alan Wade informed the council that he wasn't sure if the council adding sexual orientation was legal under the charter because he said the addition may be required as a charter amendment rather than a city ordinance.

However, Wade saw no problem with adding age, disability, and national origin, other characteristics proposed to be added by councilman Lee Harris, because those are already protected by federal law. Federal law does not protect workers on the basis of sexual orientation because the Federal Employment Nondiscrimination Act has stalled in Congress. Wade told the council, if passed, a group of citizens might have a right to sue the city for not allowing a charter referendum.

City councilman Myron Lowery, who voted in favor of adding sexual orientation, told the council it needed to act as the legislative branch of city government and vote on the issue.

"If there are ramifications after the vote, let it be. Let the courts rule on any challenge," Lowery said, evoking thunderous applause from the equality advocates in the room, most of them sporting blue shirts that read "Equal Protection for All."

City attorney Herman Morris told the council he didn't believe the body should be addressing the issue, claiming that it should be for the administration to make policy decisions. But he agreed that the charter issue needed to be researched.

Wade's opinion came as a surprise to equality advocates who showed up to support Harris' amendment to add sexual orientation. But councilwoman Wanda Halbert asked Wade to discuss the legality of making the change after several passionate speeches supporting the amendment by councilpeople Fullilove, Shea Flinn, and Harris.

County commissioner and attorney Steve Mulroy was in attendance, and upon request of several council members who supported adding sexual orientation, offered his legal advice on the matter. Mulroy, who sponsored a similar ordinance protecting LGBT workers with the Shelby County Commission in 2010, said it was his opinion that adding sexual orientation did not violate the city charter. He also spoke against delaying the amendment for 30 days because he didn't think anyone would have the standing to challenge the action of the council until a city employee actually tried to sue the city for violation of the ordinance. He called the fear of potential litigation a "bugaboo."

Equality advocates were disappointed that the amendment didn't change the city's nondiscrimination policy immediately, but the Tennessee Equality Project's Anne Brownlee Gullick remained hopeful that proponents of adding sexual orientation would mobilize even more around the issue over the next 30 days.

"The future of Memphis will not be denied," Gullick said, speaking about the next generation of Memphians who may go to work for city government.

The usual opponents of adding sexual orientation were also present. Bellevue Baptist Church pastor Steve Gaines spoke at the meeting. He told the council that he didn't believe "homosexuals deserve civil rights protections." He also claimed that passing the amendment would open the door to the "long term agenda" of the Tennessee Equality Project, which he claimed was to force all business owners to have no choice in whether or not they should hire "homosexuals."

But equality advocates showed up in greater numbers. The roster of speakers from that side included minister Davin Clemons from Cathedral of Praise and the Rev. Joseph Wallace Williams of Grace-St. Luke's Episcopal Church, who told council members that he would personally absolve them of any guilt they may feel about supporting the amendment to add sexual orientation. That drew laughs from the audience. Also representing the equal rights side were Jonathan Cole of TEP, Jacob Flowers of the Mid-South Peace & Justice Center, a member of the Memphis Fire Department officer corp, a member of disability rights group ADAPT, and Chad Johnson, the executive director of AFSCME.

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