Dave Boucher

The Tennessean

NASHVILLE — A state law aimed at stopping certain immigrants from having the ability to sell beer at a restaurant, store or other establishment is discriminatory and likely unconstitutional, according to a new opinion from the Tennessee attorney general.

In July a law took affect that bars counties from granting the permit needed for the resale of beer to anyone who hasn't been a U.S. citizen or lawful resident for at least one year. That time frame is arbitrary and violates the rights of citizens based on their national origin, writes Attorney General Herbert Slatery in an at-times stinging opinion.

"We are not aware of and cannot conceive of a compelling state interest indiscriminating between naturalized citizens and birthright citizens, or for that matter between naturalized citizens who have been citizens for 366 days and naturalized citizens who have been citizens for 364 days for the purposes of selling beer," the opinion states.

"Absent a compelling state interest to justify the discriminatory effects, the one-year U.S. citizenship requirement of (the new law) would not survive an equal protection challenge under either the federal or the Tennessee Constitution."

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The opinion was issued Friday but publicly released Wednesday. Republican state Rep. Martin Daniel requested the opinion.

Republican Rep. Pat Marsh, the bill’s sponsor, told The Tennessean last year he wanted the law because the Lincoln County Beer Board wanted to conduct background checks on anyone applying for a permit. Marsh said that's hard to do if the applicant "can barely speak English" and hasn't lived in the country for a year.

Only two members of the 99-member House and four members of the 33-member Senate voted against the legislation.

This is not the first time the Tennessee attorney general has told lawmakers they can't tie citizenship requirements to selling beer. The latest opinion notes six different occasions since 1977 where the office told lawmakers it's unconstitutional to require citizenship to sell beer or to pass laws that discriminate on the basis of citizenship.

Opinions from the attorney general do not carry the force of law, but they can be referenced in legal challenges. Legislators frequently note the opinions when arguing the merits of a bill.

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