Excerpt from the TennesseanCom article by MATT GOURAS, Associated Press
Attorney General Paul Summers says the bill is probably unconstitutional on three fronts.
• First, he said, it tampers with existing contracts between homeowners and neighborhood associations.
• Second, it probably violates the right to free speech by choosing the American flag over other flags or messages people might want to display.
• Also, Summers said, it may be construed as a move by the state to interfere with private property rights without compensation.
The Tennesse AG calls it according to the law. Unfortunately, some legislatures follow the law and others, like Arizona, feel that they can do no wrong and ignore the laws of the land.
Here, we now see the AG resorting to contract interference by such a statute, prohibited by the Constitution. The only HOA bill signed by the Arizona Governor has mandatory wording that compells HOAs to remove proxies, even if they are allowed in the governng contracts of the HOA. (NOTWITHSTANDING ANY PROVISION IN THE COMMUNITY DOCUMENTS, . . . VOTES ALLOCATED TO A UNIT MAY NOT BE CAST PURSUANT TO A PROXY. THE ASSOCIATION SHALL PROVIDE FOR VOTES TO BE CAST IN PERSON AND BY ABSENTEE BALLOT . . . .)
Second, the Tennessee AG resorts to a strict interpretation of the free speech court opinions when he says that the bill only refers to flying the American flag, and not to any other flags — free speech laws must be content free if they are to be upheld. Another decision that could have easily gone the other way if any reasonable justification for allowing for the American flag was given in the bill.
Third, he resorts to the due process “takings” prohibition of a removal of property rights by the restriction on flying only the American flag(?). This ruling can be easily applied to the Arizona so-called omnibus bill, HB2154, when it removed the use of proxies without giving any reason as to why the state has decided to interfere with private contractual rights.
Laws must reflect not only our values and beliefs, but be based on achieving some goal, some ideal, that serves to improve the long-term quality and standing of society. They should not be a “gut” reaction to some perceived problem.