Can a Tennessee judge follow the Code of Judicial Conduct's bar on sexual-orientation bias while still applying state law that does not prohibit sexual-orientation discrimination, and does the rule on organizational membership exclude judges who belong to traditional religious congregations?

Plain-English summary

Rep. John Ragan asked AG Slatery two related questions about how Tennessee's Code of Judicial Conduct interacts with the state's antidiscrimination laws.

The first question: Tennessee Rule of Judicial Conduct 2.3 says a judge, in performing judicial duties, must not display "bias or prejudice" or engage in "harassment" based on a list of characteristics that includes sexual orientation. Tennessee state law, by contrast, does not prohibit sexual-orientation discrimination. The Tennessee Human Rights Act protects against discrimination based on race, creed, color, religion, sex, age, or national origin. In 2011 the General Assembly amended the THRA to clarify that "sex" means biological sex as indicated on a birth certificate, and separately preempted local governments from extending antidiscrimination law beyond those state categories. Tenn. Code Ann. § 7-51-1802. So can a judge follow Rule 2.3 and still apply state antidiscrimination law as written?

Yes. The two rules govern different things. Rule 2.3 controls how a judge personally conducts judicial proceedings: no slurs, no demeaning treatment of litigants and witnesses, no "epithets" or hostile acts. The Tennessee Human Rights Act, by contrast, is the substantive law that the judge must apply when deciding a discrimination case. A judge whose personal demeanor honors Rule 2.3 is not required by it to read sexual orientation into the THRA. The judge applies the THRA as written by the General Assembly. Rule 2.3 protects the integrity and appearance of the judicial process; the THRA defines what counts as discrimination. There is no conflict.

The second question: Rule of Judicial Conduct 3.6 bars judges from holding membership in any organization that "practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation." Does this rule effectively exclude a judge who belongs to a traditional religious congregation that disapproves of homosexual conduct?

No. Comment 4 to Rule 3.6 says: "A judge's membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule." The Tennessee Supreme Court's official comments to its rules carry interpretive weight. Comment 4 reflects the constitutional commands of the First Amendment, the Tennessee Constitution's free-exercise and no-religious-test provisions (art. I, §§ 3, 4), and avoids the religious test problem that an otherwise broader reading would create. Rule 3.6 simply does not apply to religious organization membership.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Tennessee Code of Judicial Conduct and the Tennessee Human Rights Act have both been amended at various times. The Bostock v. Clayton County, 590 U.S. 644 (2020), federal Title VII decision and other post-2018 developments may affect how these issues are framed today.

Common questions

Q: Does Rule 2.3 require Tennessee judges to recognize legal claims for sexual-orientation discrimination?
A: No. Rule 2.3 governs the judge's own behavior, not the substance of the law applied. A judge presiding over a case where a plaintiff brings a sexual-orientation discrimination claim under the Tennessee Human Rights Act must apply the THRA as written. If the THRA does not cover that claim, the judge dismisses or rules accordingly, without the judge's own ruling becoming a "manifestation of bias."

Q: What kind of conduct does Rule 2.3 actually forbid?
A: Comment 2 lists examples: epithets, slurs, demeaning nicknames, negative stereotyping, attempted humor based on stereotypes, threatening or hostile acts, suggestions of a connection between race or ethnicity and crime, and irrelevant references to personal characteristics. The focus is on the judge's personal interaction with people in the courtroom and the judicial process.

Q: Can a judge belong to a church that holds traditional views on sexuality?
A: Yes. Comment 4 to Rule 3.6 explicitly preserves religious-organization membership as a lawful exercise of the freedom of religion. This applies to congregations of all faiths whose teachings might otherwise fall within the rule's "invidious discrimination" language.

Q: What about civic or fraternal organizations? Does the religious-organization carve-out cover them?
A: No. Rule 3.6's general bar still applies to non-religious organizations. If a judge learns that a non-religious organization to which the judge belongs practices invidious discrimination on a covered basis, comment 3 says the judge "must resign immediately."

Q: Does this opinion mean Tennessee has no protection against sexual-orientation discrimination?
A: This is a narrow opinion about state-law antidiscrimination protections as of 2018. Federal Title VII and other federal statutes have separate scope, and federal court decisions interpreting "sex" discrimination have evolved since 2018. Anyone facing actual workplace discrimination should consult an employment attorney about current federal and state protections.

Q: Why did Tennessee amend the THRA in 2011 to clarify the definition of "sex"?
A: The opinion recounts that 2011 Tenn. Pub. Acts ch. 278 amended Tenn. Code Ann. § 4-21-102(20) to define "sex" as "the designation of an individual person as male or female as indicated on the individual's birth certificate." That same act, in § 3, prohibited local governments from imposing antidiscrimination rules that "deviate from, modify, supplement, add to, change, or vary" the state standards. Tenn. Code Ann. § 7-51-1802. Existing local rules of that kind were declared "null and void."

Background and statutory framework

The Tennessee Supreme Court adopts the Code of Judicial Conduct under its inherent constitutional authority and Tenn. Code Ann. § 16-3-501. The Code is "the set of rules by which judicial conduct is to be determined." In re Bell, 344 S.W.3d 304, 313 (Tenn. 2011). Comments to each rule "are to be read in conjunction with the Rules and as aids to the interpretation and application of the Rules." Tenn. Sup. Ct. R. 10, RJC, Scope 3.

Rule 2.3 prohibits manifestations of bias and engagement in harassment by a judge or judicial staff in the performance of judicial duties. The list of protected characteristics is "race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation." That list is broader than the substantive coverage of the Tennessee Human Rights Act, which addresses only "race, creed, color, religion, sex, age or national origin." Tenn. Code Ann. § 4-21-102(4). The 2011 amendment narrowed "sex" to biological sex on the birth certificate, § 4-21-102(20), and § 7-51-1802 preempts local expansions.

Rule 3.6 separately prohibits judicial membership in organizations that practice "invidious discrimination" on a narrower list (race, sex, gender, religion, national origin, ethnicity, sexual orientation), with comment 4 carving out religious organizations as a constitutional matter.

The opinion harmonizes the two regimes by treating Rule 2.3 as governing the judge's personal in-court conduct and Rule 3.6 as governing the judge's external affiliations, while the THRA continues to define the substantive scope of state antidiscrimination law.

Citations

• U.S. Const. amend. I
• Tenn. Const. art. I, §§ 3, 4
• Tenn. Code Ann. §§ 4-21-101, -102(4), -102(20)
• Tenn. Code Ann. § 7-51-1802(a)-(d)
• Tenn. Code Ann. § 16-3-501
• Tenn. Sup. Ct. R. 10, RJC 1.1, 2.2, 2.3(B), (C); cmts. 1-3
• Tenn. Sup. Ct. R. 10, RJC 3.6(A), (B); cmts. 1, 3, 4
• 2011 Tenn. Pub. Acts, ch. 278, §§ 2, 3
• In re Bell, 344 S.W.3d 304 (Tenn. 2011)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-17.pdf

Original opinion text

Judicial Ethics and Discrimination on the Basis of Sexual Orientation

Question 1
Rule 2.3 of the Tennessee Code of Judicial Conduct requires a judge, in the performance of judicial duties, to refrain from words or conduct that "manifest bias or prejudice" and from "engag[ing] in harassment" including but not limited to prejudice, bias, or harassment "based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation." Can a judge comply with this ethical obligation and also apply state anti-discrimination law that does not prohibit discrimination based on sexual orientation?

Opinion 1
Yes. Judges must apply state law, including state anti-discrimination law, faithfully. They can do so while still complying with their ethical obligations, including Rule 2.3.

Question 2
Rule 3.6 of the Tennessee Code of Judicial Conduct directs that a judge "shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation." Does this establish a religious test that excludes from office any judge who is a member of a religious organization that disapproves of, or even condemns, sexual orientations other than heterosexual?

Opinion 2
No. A judge's membership in a religious organization is a lawful exercise of the freedom of religion and does not violate Rule 3.6.

ANALYSIS

Pursuant to its inherent constitutional authority as the "supreme judicial tribunal of the state" and its "general supervisory control over all the inferior courts of the state," the Tennessee Supreme Court has adopted ethics rules for the judges of the state. In re Bell, 344 S.W.3d 304, 313 (Tenn. 2011) (internal citations omitted); see also Tenn. Code Ann. § 16-3-501. The Code of Judicial Conduct, promulgated by the Supreme Court as Tennessee Supreme Court Rule 10, "is the set of rules by which judicial conduct is to be determined." In re Bell, 344 S.W.3d at 313. The Code of Judicial Conduct includes explanatory comments to each rule, and these comments are to "be read in conjunction with the Rules and as aids to the interpretation and application of the Rules." Tenn. Sup. Ct. R. 10, RJC, Scope 3.

1. One of these rules, Rule 2.3, prohibits a judge and the judge's staff from manifesting bias or prejudice or engaging in harassment "based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation." Tenn. Sup. Ct. R. 10, RJC 2.3(B). The comments to Rule 2.3 provide examples of manifestations of bias, including: "epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based on stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics." Id., RJC 2.3 cmt. 2. Under the rule, a judge "must avoid conduct that may reasonably be perceived as prejudiced or biased." Id. Harassment, as used in the rule, is "verbal or physical conduct that denigrates or shows hostility or aversion toward a person on the basis of one of the characteristics listed in the rule, including race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation." Id., RJC 2.3 cmt. 3.

Tennessee state and local law does not prohibit discrimination on the basis of sexual orientation. The Tennessee Human Rights Act prohibits discrimination in employment, public accommodations, and housing, see Tenn. Code Ann. § 4-21-101, and it defines "discriminatory practices" as "any direct or indirect act or practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, or any other act or practice of differentiation or preference in the treatment of a person or persons because of race, creed, color, religion, sex, age or national origin," id. § 4-21-102(4). In 2011, the General Assembly amended the Tennessee Human Rights Act to make it clear that the act did not prohibit discrimination on the basis of sexual orientation. See Tenn. Code Ann. § 4-21-102(20) (defining "sex" to "refer[] only to the designation of an individual person as male or female as indicated on the individual's birth certificate"); 2011 Tenn. Pub. Acts, ch. 278, § 2. At the same time, the General Assembly enacted a law prohibiting local governments from imposing any anti-discrimination law or policy "that shall deviate from, modify, supplement, add to, change, or vary in any manner from" the state standards and definitions applicable to discrimination. Tenn. Code Ann. § 7-51-1802(a)(1), (2); 2011 Tenn. Pub. Acts, ch. 278, § 3. That law precludes local governments from adopting laws or policies to prohibit or prevent discrimination on the basis of sexual orientation and declares existing laws and policies that do so "null and void." Tenn. Code Ann. § 7-51-1802(a)-(d).

Tennessee judges can, indeed they must, both act in accordance with the Code of Judicial Conduct and apply Tennessee's anti-discrimination law faithfully. See Tenn. Sup. Ct. R. 10, RJC 1.1 ("A judge shall comply with the law[.]"); id., RJC 2.2 ("A judge shall uphold and apply the law[.]").

No conflict exists between these two obligations. The Code of Judicial Conduct governs a judge's personal conduct to ensure procedural fairness, whereas the Tennessee Human Rights Act sets the substantive law that a judge must apply when deciding certain disputes. Rule 2.3 applies only to judges' actions "in the performance of judicial duties," and establishes ethical requirements necessary to maintain the integrity and appearance of impartiality that are essential to judicial proceedings. Id., RJC 2.3(A), (B) & cmts. 1, 2. This means that a judge may not, on the basis of personal characteristics such as those listed in Rule 2.3, engage in harassment or manifest bias or prejudice towards the litigants, attorneys, witnesses, or anyone else involved in the judicial process.

The Tennessee Human Rights Act, on the other hand, establishes the anti-discrimination law that the judge must use to decide certain cases. The Act prohibits covered entities and individuals from engaging in "direct or indirect act[s]" of discrimination on the basis of the listed characteristics. Tenn. Code Ann. § 4-21-102(4). In a discrimination case, therefore, a judge must apply this law, as written and enacted by the General Assembly, to the facts of the case to arrive at a resolution of the dispute between the parties. Applying this substantive law to resolve a case does not conflict with the judge's ethical duties to ensure that the process of deciding the case is fair and impartial.

The Tennessee Supreme Court, in the exercise of its supervisory authority, determined that manifestations of bias or prejudice and harassment by judges may "impair[] the fairness of [a judicial] proceeding and bring[] the judiciary into disrepute." Tenn. Sup. Ct. R. 10, RJC 2.3 cmt. 1. The Court included in Rule 2.3 a list of several examples of personal characteristics that should not be the basis for such manifestations, and that list, which is not intended to be exhaustive, includes characteristics such as sexual orientation, marital status, and political affiliation that are not protected under state anti-discrimination law. Id., RJC 2.3(B), (C). Rule 2.3 thus protects the judiciary from allegations that a particular judge's actions are improperly based on personal prejudices or partialities related to the types of characteristics listed, instead of being based on the impartial application of the law.

In sum, a judge who impartially applies state anti-discrimination law, as written and enacted by the General Assembly, is fulfilling the judicial duty to "uphold and apply the law," id., RJC 2.2, not manifesting bias or prejudice or engaging in harassment. Rule 2.3 does not, nor could it, prevent a judge from faithfully applying that law in a case before the court.

2. Rule 3.6 of the Code of Judicial Conduct prohibits a judge from holding a membership "in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation." Tenn. Sup. Ct. Rule 10, RJC 3.6(A). It further prohibits a judge from "us[ing] the benefits or facilities of an organization if the judge knows or should know that the organization practices invidious discrimination" on any of those bases. Id., RJC 3.6(B). As is the case for manifestations of bias and harassment proscribed under Rule 2.3, membership in an organization that practices invidious discrimination "gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary." Id., RJC 3.6 cmt. 1. Accordingly, if a judge learns that an organization to which he belongs practices such discrimination, "the judge must resign immediately from the organization." Id., RJC 3.6 cmt. 3.

Comment 4 to Rule 3.6 clarifies that the rule does not proscribe membership in any religious organization: "A judge's membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule." Id., RJC 3.6 cmt. 4. This comment reflects the Tennessee Supreme Court's official interpretation of Rule 3.6, see id., RJC, Scope 3, and prevents the rule from infringing on judges' constitutional right to practice their religion, see U.S. Const. amend I; Tenn. Const. art. I, § 3, and from violating other constitutional principles such as the prohibition against any religious test for office, see Tenn. Const. art I, § 4.

Accordingly, Rule 3.6 does not establish a religious test that excludes from office members of any religious organization, including ones that disapprove of or condemn homosexuality. Rule 3.6 is inapplicable to membership in religious organizations.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable John D. Ragan
State Representative
614 Cordell Hull Building
Nashville, TN 37243