by Jeff Woods
As we reported yesterday, it’s the opening round of the lawsuit brought by Metro Council members and others to strike down the conservative Christian-backed state law. Davidson County Chancellor Carol McCoy will hear arguments Monday.
In their motions, the legislators claim they can ignore the subpoenas because they exist blissfully in a super-duper cone of immunity bestowed upon them by the state constitution.
We asked Pith in the Wind’s crack team of legal experts to review this contention, and they’re all still rolling on the floor laughing and unable to speak. But we are willing to go out on a limb here and tell you that we think the lawmakers’ argument is a little far-fetched.
They cite the constitution’s speech and debate clause. Here it is:
Senators and Representatives shall, in all cases, except treason, felony, or breach of the peace, be privileged from arrest during the session of the General Assembly, and in going to and coming from the same; for any speech or debate in either House, they shall not be questioned in any other place.
That clause has been interpreted to give lawmakers immunity only from liability in lawsuits for legislative acts—things they do or say in the House or Senate, not political schemes they hatch in the shadow of that scary Billy Graham statue downtown.
There actually are no Tennessee court opinions on the specific question raised in the lawmakers' motion to quash the subpoenas. But the U.S. Supreme Court has ruled that the speech and debate clause in the federal constitution doesn’t cover actions that are “political in nature rather than legislative.” If the clause “encompassed all things in any way related to the legislative process,” the court said, that would make lawmakers “super citizens” with unlimited immunity.
Besides, the plaintiffs aren’t trying to hold the legislators personally liable. Instead, they want to toss out the state law as discriminatory. If lawmakers could thumb their noses at these subpoenas, that would eviscerate civil rights law. The plaintiffs in such cases must prove bias or discriminatory intent. How can they do that if they can’t force lawmakers to disclose what they were really up to?
Now that we’ve settled that question, here’s another one: If these lawmakers were motivated only by the desire to stop a new business regulation, as they have repeatedly insisted, then why are they fighting so hard to keep their strategy memos secret?