Suit examining motives behind Tennessee’s anti-discrimination law faces critical test

Sunday, October 30, 2011 at 10:05pm
Lee Beaman 

A potentially ground-breaking gay rights lawsuit could turn on what transpired during a private meeting of Christian conservative businessmen and politicians on a snowy day in January at the LifeWay offices of the Southern Baptist Convention.

That 90-minute meeting — a political strategy session — led directly to the state law that overturned Nashville’s anti-gay bias ordinance, and a who’s who of the state’s Christian Right — including lawmakers and Nashville businessman Lee Beaman — are trying to quash subpoenas aimed at forcing them to surrender any documents that might exist about their plans.

A hearing is scheduled this week before Davidson County Chancellor Carol McCoy — the first skirmish in the lawsuit brought by Metro Council members and others alleging the state law illegally discriminates against gay, lesbian and transgender people.

In an expansive view of legislative privilege contained in the state constitution, Reps. Jim Gotto, R-Nashville, and Glen Casada, R-Franklin, and Sen. Mae Beavers, R-Mt. Juliet, are claiming a near-blanket immunity from subpoenas.

That privilege in the past has been interpreted only to shield legislators from liability in lawsuits for statements made during debates on the House or Senate floor. But Gotto, Casada and Beavers argue they enjoy immunity for their actions outside the legislature as well, even those that are strictly political in nature.

Also resisting subpoenas are Beaman and officials of Tennessee Family Action Council, an evangelical organization that lobbied heavily for the state law.  They contend, variously, that the subpoenas are “far-reaching and unbridled” and make “unreasonable and unduly oppressive” demands for internal documents detailing the council’s political strategies.

By attempting to produce documents to prove the true purpose of the law was to discriminate, the subpoenas are important to the plaintiffs’ case.

During the legislative debate, the law’s advocates denied any anti-gay bias. Instead, they cast their law as an attempt to prevent confusing and burdensome new regulations from popping up all over the state. Nashville’s ordinance barred discrimination against gays by any company doing business with the city government. The state law overturned that ordinance and prohibited any city from adopting such laws in the future anywhere in Tennessee. To underline what they claim as their intent, lawmakers titled the law the “Equal Access to Intrastate Commerce Act.” 

Citing the U.S. Supreme Court’s landmark 1996 decision in Romer v. Evans, the plaintiffs contend the state law violates the Constitution’s equal protection clause because its only purpose is to deny gay people the right to seek legal protection from discrimination. 

But in that case, Colorado specifically prohibited municipalities from outlawing discrimination on the basis of sexual orientation. Tennessee’s law never mentions homosexuality. Instead, it prohibits cities from extending protections against discrimination to categories not mentioned in Tennessee’s statewide civil rights law. That law, while barring discrimination on the basis of race, creed, color, religion, sex, age or national origin, does not include sexual orientation or gender identity.

So to win their lawsuit, Tennessee’s plaintiffs must show legislators were deliberately aiming to deny the rights of gay people while claiming they were not — an alleged subterfuge the subpoenas aim to unmask.

The subpoenas mainly seek documents related to the January 2011 “urgent meeting” called by the Family Action Council’s board chairman, William Morgan to plot strategy to turn back Nashville’s ordinance. It was attended by, among others, Gotto, Casada, Lee Beaman of Beaman Automotive Group and another prominent businessman, Stan Hardaway, president of Hardaway Construction.

“The meeting will lay out the wide-reaching impact of this ordinance, what can be done to defeat it, and the next item on the homosexual agenda if this passes (which is to require all businesses domiciled in Davidson County to adopt these same policies),” Morgan wrote in an email to attendees. 

Literature handed out at the meeting decried the “immorality” of homosexuality. A source who asked not to be named later told The City Paper that one topic of discussion was the advantage of framing the debate as a business issue rather than a moral, Christian one.

David Shelley, who acts as the “Truth Project” trainer for the Family Action Council, told a reporter, “Homosexual behavior is not only morally wrong, it’s abhorrent, it’s unnatural. It prevents the species from reproducing and continuing, and it’s certainly not something that should be given special protection by law.” 

Casada and Beavers introduced their bill to overturn Nashville’s ordinance after the meeting. In court papers asking the judge to reject the motions to quash the subpoenas, the plaintiffs point out that the Family Action Council went on to campaign heavily for the bill, producing and distributing Internet commercials depicting gay people as playground-stalking pedophiles.

In a recent brief urging a federal district court to strike down the federal defense of marriage act, the Justice Department cited Tennessee’s law as the most recent example of the “significant and regrettable” history of government-sponsored discrimination against gays and lesbians.

The state attorney general’s office contends Tennessee’s courts should consider only the words of the statute to determine the legislature’s intent. The plaintiffs argue “it is well settled that inquiry into legislative intent is essential” in discrimination cases and “courts have long considered evidence other than the language of the law.”

“The members [of the legislature] ask this court to refuse to look into legislative motive and instead restrict its review to the fact of the bill. Discriminatory purpose, however, may not be apparent on the face of a statute. A law, of course, can be crafted using language to disguise its true purpose and appear completely innocuous. … [W]hat is relevant is not whether a statute discriminates on its face but whether it is based on impermissible animus. To determine the true purpose of [the state law], this court must consider all available evidence.”   

14 Comments on this post:

By: govskeptic on 10/31/11 at 5:13

Plaintiff's may secure a short lived victory with a well known
Democratic activist Judge such as Carol McCoy hearing this
initial complaint!

By: jonescry on 10/31/11 at 6:18

How absolutely horrible that Tennessee's evangelical Christians have demeaned God's Word so much - now it is only about hating and discrimination. The evangelicals should look to their Christian neighbors to learn the true meaning of the Word. They apparently have never been taught it. This is doubly true for Lifeway who has no contrition regarding not paying taxes "as a religious organization" but will not hesitate to interfere in government. That is not only hypocritical but against the law.

By: Kosh III on 10/31/11 at 7:00

" “significant and regrettable” history of government-sponsored discrimination"
l"et us do good to all people"

Which one is authentic Christian behavior, which is personal antipathy?

By: pswindle on 10/31/11 at 8:33


By: macjedi on 10/31/11 at 8:40

Way to step in it, right-wing extreme! I hope you get your asses handed to you for this one. Can't wait to see this unfold.

By: jvh2b on 10/31/11 at 9:05

Immunity to everything!?! HA

Good luck w/ that one Beavers et al!

Can't wait to see the suppeona go through and then see the clear discrimination that went into this.

I would say it would end some careers, but it is TN...they will prob get resoundingly re-elected. Sad to say for both sides of the isle...if you do something's a sure re-election bid!

By: jvh2b on 10/31/11 at 9:36

Oh and one more thing --

The planet's population his 7 billion today, and these clowns are still using a reproductive argument????

The gene pool needs some chlorine...I vote to start with these clowns.

By: localboy on 10/31/11 at 9:45

Was this a news article or an opinion piece?

By: madridia on 10/31/11 at 3:01

Hi localboy,

This is a news article. What line in it expresses the author's opinion, or makes an analysis, or suggests what should or ought to be?

In this age of punditocracy, there is a lot of confusion over what is hard news and what is editorializing, but reading back over this, I think it is pretty obvious it is straight news.

It lays out the terms of the debate, saying that the law "allegedly" discriminated (not that it IS discriminatory, which would be editorializing). It placed "immorality" of homosexuality in qutations to show that the article is not making a statemet on the morality of homosexuality.

When it says that the legislators in question take an "expansive" view of immunity, it goes on to clarify that immunity is traditionally associated with public comments on the House and Senate floor. The article notes a novel tactic, but does not say whether the expansive view is correct or not.

It provides numerous quotes from the Family Action Council about the alleged over-reach of the subpoenas. It quotes the state attorney general's office. It quotes the plaintiffs. It quotes the U.S. Justice Department for a national perspective (a debatable inclusion, but not opinion-based).

By: global_citizen on 11/1/11 at 7:01

"Can't wait to see the suppeona go through and then see the clear discrimination that went into this."

Unfortunately, I expect much of the evidence has already been shredded.

By: jvh2b on 11/1/11 at 8:18

I saw an article yesterday where Beavers and someone else turned in like 2200 pages of documents on this...of which about 7 were relevant and the rest were constituents emails thanking them for beating back the homosexual menace. If those emails don't show intent, I don't know what would....

By: Nitzche on 11/1/11 at 11:51

fudge packers unite!

By: TN4th on 11/2/11 at 2:18

Ya gotta love those christians, who want us to live in theocracy and to deprive rights to those citizens of the USA that they personally disapprove of.

By: smiless on 11/9/11 at 12:35

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