By David Mason
Special to The Commercial Appeal

Opposition to including sexual orientation and gender identity among the attributes protected by Memphis’ nondiscrimination ordinance is, perhaps, best summarized by the Family Action Council of Tennessee.

The organization’s recent “Talking Points on Non-Discrimination Ordinances” include such common-sense wisdom as, “The terms ‘gender identity’ and ‘gender expression’ are overly broad and completely open-ended” and that nondiscrimination ordinances “create new ‘classes’ of specially-protected people.”

The group also is concerned that canonizing protections for people on the basis of sexual orientation and gender identity will encourage new forms of discrimination, cost Memphis a lot of money in new lawsuits and previously unjustified health care costs, and, in the end, simply legitimize a lifestyle.

They are not blazing a new trail, here. The adoption of the U.S. Constitution in 1778 did not satisfy everyone in the room that the foundation of law and order in the country was as amenable to all kinds of people.

Apparently not convinced that the Constitution, as written, did an adequate job of ensuring liberty, Thomas Jefferson himself promoted an amendment that would expand protections. The ensuing argument over the First Amendment dragged on for more than 10 years.

In those days, not everyone was wild about Jefferson’s radical notion to protect religious identity.

Francis Lightfoot Lee of Virginia, for instance, argued that the amendment itself was discriminatory. “Ordinances that specifically reference religion do not address many of the other documented forms of discrimination,” he noted.

Lee pointed out that a constitutional protection of religious identity was bound to define an opposite identity as unprotected, by default. Lee feared that Jefferson’s amendment would leave men who stood at less than 5-foot-2 vulnerable to discrimination. We have no record that Lee was concerned about short women.

Button Gwinnett, the former president of Georgia, asserted that religious identity should not be equated with immutable characteristics such as gender and wealth. Many people can and do change their religious identity, Gwinnett pointed out, whereas a person is born male and rich.

Gunning Bedford Jr. of Delaware made the case that injecting “religiosity” and “religious identity or expression” into the constitution would open a Pandora’s box of ways for the country to be sued. Either the country would end up discriminating against people on the basis of religious orientation and “religious identity” to placate secularity in the workplace, or it would discriminate against secularity to placate religious orientation and “religious identity” lifestyles in the workplace.

John Witherspoon of New Jersey, a Presbyterian minister, argued that the term “religion” was overly broad and completely open-ended. Witherspoon noted that leading academic institutions, pro-religion advocacy organizations, and religious publications had identified more than 50 different religions in both the popular culture and the aristocratic settings of the new country. “What,” wrote Witherspoon, “are we gonna protect those (expletive) Quakers?”

Philip Livingston of New York simply thought the amendment would cost too much. He went on to complain that religious people would start thinking that a constitutional protection guaranteed them food.

Daniel of St. Thomas Jenifer, ignoring wisecracks about his name, simply characterized religion as a mental disorder. Wrote the estimable elder statesman from Maryland: “Will the Second Amendment to this fine American constitution extend protected legal status to the mad, the deranged, the lunatic, and the (expletive) Quaker?”

David Mason is an associate professor at Rhodes College and a Faith in Memphis panelist.