Tennessee Generally Bans Political and Religious Discrimination by Financial Institutions

From a newly enacted bill:

A financial institution shall not deny or cancel its services to a person, or otherwise discriminate against a person in making available such services or in the terms or conditions of such services, on the basis of:

(1) The person's political opinions, speech, or affiliations;

(2) Except [for a financial institution that claims a religious purpose], the person's religious beliefs, religious exercise, or religious affiliations;

(3) Any factor if it is not a quantitative, impartial, and risk-based standard, including any such factor related to the person's business sector; or

(4) The use of a rating, scoring, analysis, tabulation, or action that considers a social credit score based on factors including:

(A) The person's political opinions, speech, or affiliations;
(B) Except [for a financial institution that claims a religious purpose], the person's religious beliefs, religious exercise, or religious affiliations;
(C) The person's lawful ownership of a firearm;
(D) The person's engagement in the lawful manufacture, distribution, sale, purchase, or use of firearms or ammunition;
(E) The person's engagement in the exploration, production, utilization, transportation, sale, or manufacture of fossil fuel-based energy, timber, mining, or agriculture;
(F) The person's support of the state or federal government in combatting illegal immigration, drug trafficking, or human trafficking;
(G) The person's engagement with, facilitation of, employment by, support of, business relationship with, representation of, or advocacy for any person described in this subsection (c); or
(H) The person's failure to meet or commit to meet, or expected failure to meet, any of the following as long as such person is in compliance with applicable state or federal law:
(i) Environmental standards, including emissions standards, benchmarks, requirements, or disclosures;
(ii) Social governance standards, benchmarks, or requirements, including environmental or social justice;
(iii) Corporate board or company employment composition standards, benchmarks, requirements, or disclosures based on [ace, creed, color, religion, sex, age or national origin]; or
(iv) Policies or procedures requiring or encouraging employee participation in social justice programming, including diversity, equity, or inclusion training.

At least one jurisdiction already bans discrimination based on political opinion in financing (e.g., Howard County, Maryland), but to my knowledge this is the first state to do so. (Federal law and the law in many jurisdictions already generally bans various kinds of financial discrimination based on race, religion, sex, and the like.) Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Comments

[#FFFFFFPride]

This is how you fight the Marxists.

They need to make political identity a protected class, generally.

[AmosArch]

Its funny how 2020s ‘far right’ conservatives fight for the same laws 50s-60s liberals would.

[great Unknown]

Elon Musk has noted this. He, he claims, has not shifted philosophically: it's philosophy that has shifted.

[AmosArch]

According to the narrative among the progs here and in other places America and the world are far more conservative than they’ve ever been in history. 1800s conservatives if abducted from their transgender bathroom opening celebrations and brought to the present day would blanch at how conservative Alito, Trump, and DeSantis are.

[Magister]

I don’t know of any progressive who thinks that; it would be a stupid opinion. But there are a lot who observe that the United States is in many ways more conservative than it was 50 years ago; certainly SCOTUS is.

[AmosArch]

I what ways other than overturning Roe v Wade which is probably far more controversial and unpopular today than it would have been in the 70s is America significantly more conservative today than in the 70s?

[Magister]

You first; produce evidence for your nonsensical claim about "the narrative among the progs here" and then I'll list some number of ways.

[Rossami]

re: "the United States is in many ways more conservative than it was 50 years ago"

Name those ways and show what numbers are the basis for that opinion. Because that runs wildly against the observations of those of us who were there 50 years ago.

[Magister]

You think I wasn't here 50 years ago? LOL.

[Rossami]

Okay, I'll admit I don't know your age. Now stop deflecting and name them.

[Magister]

You are all over my comment, even though I already named one way in which the US is more conservative, but you don't have a word for AmosArch's stupid assertion that anyone thinks the current US and world is more conservative than it has ever been, or that the only conservative decision of the Supreme Court in the last 50 years is Dobbs. Nor am I interested in endless quibbling over the number required to qualify as "many". I do not believe that a good faith discussion with Rossami is possible, and the abrasiveness of this demand supports that belief.

[Sarcastr0]

I think it depends on if you mean the opinions of the American People or government policy.

[tekcoyote]

Disagree, for Elon’s reasons. Does anyone really believe that 50 years ago, SCOTUS would have ruled for the ACA, Kelo, or differed in Heller? The zeitgeist has changed a lot more than the Court has. SCOTUS is supposed to be steadfast and anchor civilization by playing only by the rules. Second to them is the classical Senate—the “cooling saucer” of reason—followed by the House, and finally, the perpetual wild card of government, the White House.

[Magister]

If Congress had passed ACA fifty years ago, I think the Supreme Court would have allowed it; but a different Congress and President might mean a different Supreme Court. Heller represented a shift from precedent that existed in the 1970s. With respect to Kelo, powerful people have long used eminent domain to take property for largely private use; I have no idea if the 1970s liberals would have voted the way 2005 liberals voted in a case like Kelo, or what the swing votes would have been.

[#FFFFFFPride]

I don't support out of some principled belief in "protected classes".

I support it pragmatically. These are the tools we have and the world we live in.

[Krayt]

It's funny how 2020 "liberals" fight to censor and other laws as 1950s and 60s conservatives would, or would have, had such even been conceivable. Free expression for trillion dollar corporations!

You're all situational ethics waffling, what's the word? Rhymes with "word"? Starts with T?

[Sarcastr0]

Yeah, I expect the small government shouters who rail against the Civil Rights Acts as government intrusion onto their freedom of association will now turn on a dime.

Because freedom isn't a universal good for them. For them, conservatism consists of in-groups that the law protects but does not bind, and out-groups that the law binds but does not protect

[Ed Grinberg]

I am a vocal proponent of limited government. I do rail against the parts of the Civil Rights Act that made it illegal for private businesses to discriminate.
Since you asked, here's my position:
Should political / ideological discrimination be permitted? Certainly not by the government.
As for private entities, as long as the prohibition on discrimination based on race, sex, national origin, religion, etc. remains in effect, I don't see why political / ideological discrimination should be the one exception. Just because you & your ilk like it? Sorry, not good enough.
Even if (hopefully, when) the general prohibition on private discrimination goes away, banking, being an especially heavy-regulated industry (for good reason), should probably be an exception (along with public transporation, public utilities, etc.). On the other hand, I'd let Lester Maddox serve whoever he likes.

[Sarcastr0]

I don’t see why political / ideological discrimination should be the one exception. Just because you & your ilk like it? Sorry, not good enough

You, of course, are both incorrect and basing your position on reacting to those durn libs not your own principles.
Tons of classifications are not protected, ideology only one among them.

You're inconsistent and don't care.

As I said.

[Dr. Ed 2]

I think the Civil Rights Act was necessary, I just think it should have been done with a Constitutional amendment (which would have been possible at the time) and not a bastardization of the commerce clause.

It may have taken a year or two more, but it should have been done RIGHT and with clear language that "thou shalt not treat people differently because of the color of their skin" -- although this would put an end to most DEI today....

[John F. Carr]

This is the big one: "Any factor if it is not a quantitative, impartial, and risk-based standard, including any such factor related to the person's business sector." The ban on political discrimination only comes into play if the bank has evidence that Democrats are bad investments. The ban on religious discrimination only comes into play if the bank has evidence that the Protestant work ethic is real.

Redlining would not violate this law if there is evidence that the bad part of town is a bad investment. It could still violate other laws.

[ducksalad]

(3) seems way too broad, it appears to make subjective human judgment illegal.

[great Unknown]

subjective human judgement not founded on evidence can be used to justify the most heinous discrimination. especially in an environment where definitions are arbitrary and feelings carry the weight of law.

how else can this be dealt with?

[dwshelf]

Sounds way over detailed.

[great Unknown]

given the current level of lawfare, how could it be otherwise? I suspect there will have to be amendments to plug some loopholes because it wasn't detailed enough.

[It's only a paper moon, Nominalists]

Each of the provisos shields discrimination by government

(1) of course depends on what party is in power, right
(2) makes even perv sex and killling babies a 'religious' act, IE , you can't offend against these things but you can promote them
(3) and (4) and this is where if they have no other way they run you into financial ruin trying to defend the scientific basis of what they call into question.
A law made by demons.

[Please, Daivd, Seek Help]

I am grateful that Tennessee is fighting for bank equity for marijuana dealers and sex workers, but I am not sure whether or not they know they are doing so.

[great Unknown]

it's about time somebody did. it should not be protection only for politicians in those fields [a minority in the first, the vast majority in the latter].

[Bob from Ohio]

What section does that in your opinion?

[Dr. Ed 2]

Wouldn't "violation of criminal code" exclude drug dealers and whores?

[CJColucci]

Your free market at work.

[Rev. Arthur L. Kirkland]

As is customary, the clingers try to pay 'heads I win, tails you lose.'

These gullible dumbasses like playing 'we can discriminate against everyone else, but no one can discriminate against us,' and they'll keep it up so long as Republican judges and right-wing legal mouthpieces are still strong enough to defend it.

Eventually, however, they and their superstitious, bigoted preferences will be crushed in the culture war by better Americans and better ideas.

[Randal]

Poor Tennessee.

Sorry but passing laws making it illegal for us to discriminate you isn't going to make us like you. You should know that better than anyone!

[Rev. Arthur L. Kirkland]

STATES RANKED BY EDUCATIONAL ATTAINMENT

HIGH SCHOOL DIPLOMA
Tennessee 34

COLLEGE DEGREE
Tennessee 40

ADVANCED DEGREE
Tennessee 36

HALF-EDUCATED HAYSEEDS
Tennessee 7

(and that's letting those yokels count their backwater religious schools and nonsense-based education that never should have been accredited)

[#FFFFFFPride]

I love how you always shit on America's Black Belt.

[Rev. Arthur L. Kirkland]

You mean the Bible Belt (less advanced, parasitic states populated largely by poorly educated, gullible hayseeds)?

[SRG2]

Summary: you can't discriminate against people who discriminate,

[Jaypd]

Can government make political opinion a protected class in view of the first amendment?

[#FFFFFFPride]

Didn't they make your opinion about your gender a protected class?

[Krayt]

I dunno, but computerized, AI-driven panopticon analysis monitoring everything you watch and buy, in a perfect emulation of 1984, right down to TV cameras watching you, including mics, and, lol, sonar, offered up to government, well...

Maybe Japanese comics of sci fi corporate dystopias aren't so laughable anymore.

[Sarcastr0]

Such drama. Such off-topic drama.

[Rev. Arthur L. Kirkland]

These clingers are fearful. And paranoid. And disaffected. And superstitious. And delusional. And, eventually, irrelevant. You can’t stop progress, science, reason, modernity, inclusiveness, education, or any of the other things conservatives can’t stand.

[Rossami]

Sure. Several states already protect political beliefs and activities. If there are any successful 1A challenges to those laws, I’m not aware of them.

For example:
- CA Labor Code sections 1101 and 1102
- NY Labor Law section 201-d
- DC Human Rights Act
- CO Revised Statutes section 24-34-402
- ND Century Code section 14-02.4-01
There might be more but those were the ones I could easily find.

[Jaypd]

Hmm. I don't know if I'd consider that quite the same....

[Rossami]

Okay, in what way are they different? The various laws have (more or less precise) definitions of what is intended to be protected. You didn't give a definition for what you consider "political opinion" so can you clarify your original question, please?

[Sarcastr0]

Quick and dirty search:
"California Labor Code sections 1101 and 1102 prohibit employers from attempting to control or direct the political activities or affiliations of their employees, and prohibit employers from discharging or taking other adverse action against employees for their political activities."

Employee regs are a whole different area of law from who a business provides its services to.

I'm not against the reg in principle, it's just utterly unimplementable. Pure right-wing persecution complex virtue signaling.

[Rossami]

I'm pretty sure both those area of law are still subordinate to the Constitution, and therefore to the First Amendment.

So if the legislature can make X a protected class for employment purposes (and it seems they have), what prohibits them from making the same X a protected class for other purposes?

[Sarcastr0]

First, I'm not at all sure this would be struck down under 1A.

That being said, employment choices (especially once the employee has already been hired) are not legally the same as who you offer your services to.
Masterpiece Cake Shop &c. expressive association cases are not in the same line of cases about hiring choices by religious institutions.

As to the logic why, I think it could just be historical accident of the Civil Rights era legal landscape, or maybe that public-facing commercial choices are just seen as a different kind of calculous compared to internal business decisions.

Again, I'm not at all sure this distinction means that the expressive association of the right to choose who you associate/do business with logic would carry the day.
Though I do see serious implementation/scope issues that seem completely unconsidered in this law.

[Sarcastr0]

If money is speech, and these companies are not common carriers, I think you at least get into the courtroom door.

[Krayt]

[EscherEnigma]

First, I want to say that I'd actually suport a national-level that was something to the effect of banks and payment processors being too essential to modern society to allow them to discriminate, and white-listed a very narrow list of grounds on which they *could* refuse customers and transactions.

Banks and Mastercard and the like shouldn't be choosing what you can spend your money on, after all.

That said... I'm trying to see the point of this law. Going through the list of "thou shalt" you get a grievance list of what modern conservatives whine about. I'm genuinely surprised they didn't slip some random anti-trans bullshit in there. What I don't see is anything that addresses problems on-going in the state of Tennessee.

Hell, if at least it had included a bit about banks not refusing customers because the customers refused to wear a mask... well, there was a story about that back in January.

Even the religious group that allege that Chase might have dropped them over religion... if that's true, that's probably already covered by existing non-discrimination law. And faces the same problems under this law as federal: it's fucking hard to prove.

So yeah. I don't have anything against the actual idea. This case though, is obviously just conservative whining, and doesn't really adddress real problems, just more "stick it to the libs (by stopping hem from doing something that they weren't doing anyway)."

[QuantumBoxCat]

ISIS can now get financing in Tennessee to fund it's "religious activities." Where's the line between terrorist organization and religious affiliation? How do financial institutions in Tennessee comply with federal laws prohibiting support of terrorist organizations and Tennessee law prohibiting denial of financial services based on religious belief/exercise/affiliation?

Eh .. let the courts figure it out

[Dr. Ed 2]

I think that the US State Department and related Federal sanctions would be a tad "persuasive."