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.”