Grounds for suit: City’s gay ordinance outside legal authority in charter

Mayor Andy Berke holds a cute pup, but a poofter city ordinance he admires is a real mongrel. (Photo city Twitter feed)

(An effort to oust city councilman Chris Anderson has failed by a lack of 421 signatures. Mr. Anderson is the inspiration of city government’s lugbutt (OK OK, LBGT) ordinance for domestic partner benefits. A plebiscite to overturn the ordinance is set for early August. What if that fails? The case for litigation is strong. The city charter is a starting place to determine its illegality.)

By David Tulis

Are you going to sue city government over its illegal ordinance discounting marriage and giving marital employment benefits to live-in and love-in partners of city staff?

Before talking to your attorney, you’ll want to tally the powers granted the city by the general assembly. Or have him do it. The city is an arm of the legislature given plenary power to write private laws whose range is that of the city’s borders. In many ways since adoption of home rule in 1972, it is a free agent; it is self-governing and the city’s ordinances bear the imprimatur of the state in their enforcement.

Still, the question remains. Does Chattanooga have authority to create domestic partnerships sought by homosexual activists? Knoxville and Collegedale political authority enacted them before our councilmen did Nov. 20. Do these governing bodies have authority to enact such schemes?

Whether it is lawful depends on the city charter and the source law behind. In litigation, city attorney Wade Hinton would argue that the creation of “domestic partnerships” by the city is a lawful exercise of power for the public welfare, and a lawful (and trendy) discretionary act. Mr. Hinton’s best weapons in the charter are the vaguest terms and possibly an argument about “implied power”under “general health of the inhabitants” terminology.

Many powers granted by general assembly

Chattanooga has power to levy and collect taxes upon all property taxable by law for state purposes. It is allowed to collect taxes on state privileges. It has power to build and repair sidewalks and “to regulate and prevent the carrying on of manufactories dangerous in causing or producing fires” (like that old language?). It can license and tax trailer camps and tourist guides and charge a F$30 fee for a man to run an archery range.

Its power is extensive. But I’d like to cut through the small type and get to the meat of the question you’ll want to discuss with your attorney. Is the city’s creation of a sexual union recognition system whose course parallels that of marriage within its authority? Or is it ultra vires — outside the scope?

Let’s first ask if this pending conflict is over sex. Chattanooga has no power to regulate private sexual acts. But it is free to crack down on sex in commerce — prostitution.

17) Same-Theatrical and other exhibitions; suppression of bawdy houses, gambling equipment, etc. To license, tax and regulate theatrical or other exhibitions, moving picture shows, amusements and to prohibit and suppress gambling houses, disorderly houses, bawdy houses, obscene pictures and literature; *** (Section 2.1.17)

This aspect of the charter is irrelevant to the city’s defense of its rule because the sexual unions’ being supported by taxpayer subsidies are private and noncommercial. The regulation of whorehouses is not part of the argument for Mr. Hinton nor for you and your attorney.

So where might Mr. Hinton turn? He will find solace in a charter provision that says, grandly, the city can carry out “the full intent, corporate purposes and meaning of” its enabling law “as fully as if specifically authorized and as if the powers were expressly conferred.” A redundant provision of the charter immediately follows that says the city enjoys implied powers “as fully and completely as though said powers were specifically enumerated herein.”

These provisions seem rich, at first. But only if Mr. Hinton gets Chancellor Jeff Atherton or Frank Brown (or successor Pam McNutt Fleenor) to overlook other claims in the same paragraphs. Namely, that Chattanooga is free

[t]o pass all ordinances not contrary to the Constitution and laws of the state necessary for the health, convenience, safety and general welfare of the inhabitants of the city (Section 2.1.65)

The operating principle is liberty within law. Chattanooga has liberty — under the law. Ordinances must protect the health and general welfare of the inhabitants, but “not contrary” to constitution or statute. Tennessee has a constitutional amendment jealous of marriage and hostile to the revisionist theory of marriage pushed by homosexuals and federal courts. We can talk about the constitutional claims another day.

Parts of charter that won’t help city’s defense in lawsuit

The tenor of the city charter is moral, though not strongly. It favors outward order and a limited civility. The city s authorized to arrest, imprison and punish “riotous and disorderly persons within the city” and, separately, “to provide for the protection of children” (sections 2.1.23 and 2.1.30, respectively). It is able to design its own rules to “to prevent the spread of venereal diseases” in the city (Section 1.2.58). Lawful marriage is the basis for the rearing of children, and an antidote to riot.

Careful of public welfare, the charter has a sweeping grant of authority to blockade acts and properties injuries to “the health [and] morals” of city residents. The city is is free to

define, prohibit, suppress, prevent and regulate all acts, practices, conduct, business, occupation, callings, trades, uses of property, and all other things whatsoever detrimental to the health, morals, comfort, safety, convenience or welfare of the inhabitants of the city, and to exercise general police powers under the provisions of this Act and the general law. (Section 2.1.52) (Priv. Acts 1949, Ch. 536, § 2)

What is controlling law?

The charter, according to supreme court rulings for the past 140 years, is the controlling law for a city. The charter often reflects this subordination with phrases such as “hereby specifically authorized and empowered.” The city is “hereby” (by the charter document) “empowered” to build and run an airport and to condemn property for railroads. You get the sense of delegation in hearing redundancies: It has “full control, authority and power” over streets, alleys, sidewalks and sewers (Section 15.1).

The defendant city will have to persuade chancery court that its creation of “domestic partnerships” between sexually active people, same-sexers included, are within its area of liberty and discretion.

Limitations on municipal authority are severe. They operate against innovations of this kind no matter how popular homosexual theory is in federal courts or in the North and at the West Coast. Mr. Hinton is to bestow legal work “in a responsive, proactive, creative and timely manner so that [the city] can govern lawfully with the highest level of integrity and serve the community effectively,” his office says.

Do you believe Mr. Hinton misled the city council? Did he mislead Jerry Mitchell, the swing vote on city council? Thanks to Mr. Hinton, Mr. Mitchell has been liberated. In official capacity, he has declared by his vote that two homsexual bearded ones getting each other dirty are equal to you, my reader, making sweet love to your wife there in the upper room of the house this night, as the children are asleep beyond and she has eyes only for you and no other in the bonds of marriage.

The charter contains phrases that Mr. Hinton might use to defend the charter before the voters and before his judge. But given that court cases appear largely to favor limits on corporate power, especially when challenged by someone like you, he will find little support.

Source: charter, City of Chattanooga Inc.