But the legislators swore in affidavits that’s all they’ve got that might interest the plaintiffs, and Davidson County Chancellor Carol McCoy ruled this morning that was good enough for her.
“I guess we’ll take them at their word,” said Abby Rubenfeld, attorney for Metro Council members and others who brought the lawsuit.
“I do,” the judge said.
That meant the court never heard arguments on the lawmakers’ claim that they basically are above the law and don’t have to obey subpoenas. To say the least, it was an expansive view of legislative privilege contained in the state constitution. 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 argued they enjoy immunity for their actions outside the legislature as well, even those that are strictly political in nature.
Still to be decided, though, are motions from the Family Action Council of Tennessee and their allies in the business world—including Nashville car salesman Lee Beaman—to quash their subpoenas. F.A.C.T. was the main advocacy group that lobbied for the state law. McCoy said she would take those motions under advisement and rule later.
The lawsuit’s plaintiffs are fishing for evidence to show the intent of the state law was—not to stop burdensome business regulation, as lawmakers claim—but to illegally discriminate against gays, lesbians and transgender people.
Lawmakers for F.A.C.T. and the businessmen claimed the subpoenas violate their First Amendment rights to free association. It’s not fair to force advocacy groups to disclose their political playbooks to their opponents, they said, and what’s more, it will have a chilling effect on democracy if you force private citizens to surrender emails and other confidential communication about their political participation.
Even publicity over the subpoenas has led people to try to intimidate Lee Beaman, according to his lawyer, James Cameron. As evidence, he mentioned what commenters have been writing on this very blog—“comments such as ‘Another reason to hate Lee Beaman.’ ”
“Now, c’mon,” Cameron told the judge. “This is absurd.”
Rubenfeld dismissed all these concerns with a wisecrack: “We say they need to come out of the closet and disclose what they’ve been doing. There is no right to lobby in secret.”