Tennessee's new plain meaning law masks an anti-gay, anti-feminist agenda. It’s plainly ambiguous and discriminatory.
When laws don’t define the words that they contain, we’re supposed to give those words their plain or ordinary meaning. A Tennessee bill, passed on April 27 and signed by Gov. Hallam on May 26, would take this common practice of legal interpretation and turn it into a law, only with a twist: the Tennessee plain meaning law has a hidden meaning that threatens to roll back hard-won rights.
The law requires that in any statute,
undefined words shall be given their natural and ordinary meaning, without forced or subtle construction that would limit or extend the meaning of the language. [SB 1085]
This may seem innocuous on its face, encoding a traditional method that judges use to figure out what laws are supposed to mean: checking dictionaries, looking at how other people have used the words, and applying their own understanding of the English language. But by prohibiting any “forced or subtle construction” of plain meaning, the bill’s supporters have made it clear that they’re attacking same-sex marriage and parenting.
True, SB 1085 doesn’t actually say this, but it borrows heavily from a failed bill that did. That bill reads,
The words "husband", "wife", "mother", and "father" shall be given their natural and ordinary meaning, without forced or subtle construction that would limit or extend the meaning of the language and that are based on the biological distinctions between men and women. [SB 30]
This blatant attack on marriage equality, hidden between the lines of Tennessee’s plain meaning law, is nothing new for Tennessee, which has an embarrassing history of resisting progress. The state banned the teaching of evolution in 1925 (HB 185). And in 2016 it banned the use of public funds "to promote the use of gender neutral pronouns" (HB 2248), because insidious, pinko pronouns like ze, hir, or singular they signal the end of Western civilization as we know it. Writing a plain meaning law with hidden meanings is a no-brainer—literally—for legislators who deny science and micromanage other people’s pronouns.
The plain meaning law impacts women’s rights as well as LGBT rights. As the Human Rights Campaign’s Hope Jackson warns, anyone interpreting the law as written could insist that when man appears in a statute or regulation, it means 'no women.' You may think that’s not going to happen, but for years after the passage of an 1871 federal law that stated, "words importing the masculine gender may be applied to females," courts were defining man to include women only in cases involving obligations like paying fines and taxes, while they regularly excluded women from benefits like voting and becoming lawyers or lawmakers.
Even without a hidden agenda, Tennessee’s plain meaning law ignores the fact that the plain meaning of words, their ordinary or customary meaning, is often in dispute: that’s why lawyers and judges spend so much of their time arguing whether tomatoes are fruits or vegetables (in 1893 the Supreme Court decided they were fruits), whether X-Men action figures are toys or dolls (they are toys, according to the courts, but G. I. Joe figures are dolls); or whether a given fastener is a bolt or a screw (if you must know, it turned out to be a screw). Not to mention the ongoing debates over the meaning of such well-known phrases as keep and bear arms or the freedom of speech, or what the meaning of little words like is is. Even the definition of plain and ordinary meaning isn’t always clear, nor is it clear, at least to legal scholars, whether plain meaning is different from ordinary meaning. There are a slew of law review articles devoted to this thorny question, as well as entire books. If plain meaning were really so plain, we’d have far fewer lawsuits, and judges and lawyers would have a lot more time for golf and social media.
As for the phrase "natural meaning" in the Tennessee law, that’s also problematic, because words don’t have natural meanings. Instead, the names of the things in the natural world are arbitrary, invented and adopted by the speakers of each of the world’s 7,000-odd languages. Even in the state where legislators reject both Darwin and singular they, fundamentalists will tell you that Adam named the animals. He didn’t ask them what their names were, or their pronoun preferences.
Tennessee’s plain meaning law has drawn national attention for its obvious discriminatory bias, like the anti-pronoun law and the one about evolution before that. Even the state’s attorney general worried in an opinion that the law posed a challenge to the U.S. Supreme Court’s 2013 marriage equality ruling, though he added that judges would probably uphold rights by defining gender-related terms inclusively. But that’s hardly reassuring, since the plain meaning law does not require inclusive definitions of words like man, woman, wife, husband, father, or mother. A conservative judge committed to a theory of original interpretation would surely find inclusive interpretations "forced or subtle" and instead read such words narrowly and "naturally" to bar gay adoption, same-sex marriage, or the right to equal protection of the laws.
In the end, with or without the new Tennessee law, plain meaning will be whatever judges say it is. That's because, to paraphrase the slogan of the NRA, "words don't make meaning, people do."
