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Motion to ‘Recall’ and Vote on Fetal Heartbeat Bill Tabled

On Monday evening, Sen. Mark Pody (R-Lebanon) invoked Senate Rule 63 for SB 1236, the Senate version of the “fetal heartbeat” bill, in an attempt to bring the bill to the full Senate after the Senate Judiciary Committee voted the week before to study the bill this summer.

However, Sen. Jack Johnson (R-Franklin), the Republican majority leader, moved to table the motion and Speaker McNally then quickly called for a voice vote on the motion to table and ruled that the tabling motion had passed. In doing so, Speaker McNally and Republican Majority Leader Johnson denied Sen. Pody his “right to be heard after the motion to table is made and before said motion to table is put to vote,” as provided in Senate Rule 48.

So, as of now, the Judiciary Committee will hold hearings on August 13 and 14 to learn more about the bill.

Sen. Pody tweeted on April 23, “Thank you so much for the thoughts and prayers for The Heart Beat Bill. We will be working to save the lives of these babies in Summer Study.”

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Amazon, Other Companies Seek Defeat of Tennessee Pro-Family Legislation

Amazon is one of a number of companies that have signed a letter asking Tennessee legislators to defeat legislation it deems anti-LGBT, including Family Action of Tennessee’s School Protection Act and another bill that would provide conscience protections for adoption and foster care child placement agencies that, based on their religious convictions, choose to place children in those homes where the child will have a mother and a father.

The letter, which was coordinated by the Nashville LGBT Chamber of Commerce and a national organization, Freedom for All Americans, made a veiled threat that economic consequences will result from such legislation.

Additionally, Nike is one of 11 companies signing a similar letter coordinated by the Human Rights Campaign.

While these companies have every right to express their beliefs, let’s be sure that their influence is not disproportionately felt. Let your legislators know how you stand on these issues and then take the time to thank them if they vote consistent with your values.

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‘Fetal Heartbeat’ Bill Suffered from ‘Congenital’ Defects

Monday night, the so-called “fetal heartbeat” bill was put on life support and transferred to a meeting of the Senate Judiciary Committee this summer. There’s much not to like about what happened on this bill, particularly some of the parliamentary maneuvering. Lots of pro-life Tennesseans are incensed. But the bottom line is that the bill was birthed, legislatively speaking, with a ‘congenital’ political defect. Here’s the not-so-pleasant truth.

Defect No. 1—A Really Bad Start

The bill got off to a bad start. I’ve previously said why that is so, but the bottom line is that the version of the bill passed by the House was so poorly done that even I would not have defended it in court, let alone our risk-averse, jurisprudentially moderate attorney general.1

Unfortunately, a bad start is hard to overcome because, politically, a poorly written or poorly documented bill is the version that sticks in everyone’s mind as the bill goes forward.

As with people we meet, first opinions are hard to overcome, particularly when it comes to a bill’s constitutionality. Non-lawyer legislators, just like their constituents, don’t find it easy to understand why some words or phrases make a bill constitutionally defective, but others, perhaps not seeming that different, now make it constitutionally defensible.

Defect No. 2—Confusion and Overlooked Information

At 3:27 on Monday afternoon prior to the start of the 5:00 p.m. session when Senator Mark Pody’s motion to bring the bill to the Senate floor was to be voted on, I had a veteran senator call me. This senator thought the motion was to bring up the House version of the bill. He didn’t realize Sen. Pody had presented a completely different version of the bill to the Senate Judiciary Committee.

That’s a real problem when the thing the legislator thinks he or she is voting on is said to be unconstitutional by every lawyer you know. Sadly, I suspect there were other senators who were in the same position.

Moreover, I suspect few, if any, of the senators who were not on the Judiciary Committee had gone back to listen to testimony that had been offered to the nine members of that committee in support of the bill. I doubt any of them had read the written transcripts of the testimony I provided to the committee. I suspect they were going off what they’d been told about the constitutionality of the bill as it was a couple of weeks ago. (Refer to Defect No. 1, above.)

That sounds outrageous, but let’s be honest with ourselves. It’s hard to expect someone to meet with constituent groups off and on all day, attend committee meetings in between, go to constituent receptions in the early evening, and still have time to read the bills that are coming up the next day. To do that, a legislator has to work into the night. I did a lot of that, but session just grinds you down, and it becomes physically impossible to keep up.

That’s why lobbyists are important. They relay to legislators the latest information about a bill, make sure legislators know what they are voting on, and answer any questions legislators might have.

Defect No. 3—Going It Alone Is Hard

But, in the case of the “fetal heartbeat” bill, the organization that would normally handle that work on pro-life legislation was not in favor of the bill. It was not going to do anything to help toward the bill’s passage.

Given that our organization already had its agenda set before session started and this bill popped up, our one regular lobbyist had to follow through with the legislators we’d asked to work on our issues. Nothing will ruin a lobbyist’s effectiveness like leaving a sponsoring legislator hanging. We just had no capacity to take on the ton of work it takes to lobby another bill, particularly such a major bill.

I did put off the other work I had been directed to do by my board in order to provide Sen. Pody with a legal justification for his amended bill; however, the bottom line is that the House and Senate sponsors originally went forward with the bill knowing they had not sought any organizational lobbying support, and any presumption that they thought such would not be necessary proved wrong.

Defect No. 4—Leaving the ‘Heartbeat Bill’ Defenseless

In my effort to assume, for now, the best of the Republican senators, I told Sen. Pody that there was a sure measure of wisdom in not enacting a bill that the attorney general would not defend in court. This is particularly problematic since the only alternative in that case would be for the two Speakers to agree to hire outside counsel. Speaker McNally was not going to take my word on whether the bill was constitutionally defensible over that of the attorney general. I can appreciate that. Sen. Pody, to his credit, appreciated this problem and tried to get a letter from Liberty Counsel agreeing to defend the bill if passed, but there just wasn’t enough time.

Can the Defects Be Overcome?

Now, the question is whether those senators who on Monday professed their pro-life bona fides on the floor and those who have since professed them to disgruntled pro-life constituents will do what needs to be done this summer to make sure this bill is given every opportunity to pass in January and will garner their votes.

What has happened is that opponents of the bill this year have now laid their political bed among pro-life voters, and they will have to sleep in it.

Continuing to say, as some have done, that “this bill isn’t strong enough” or “this isn’t the right vehicle” is going to ring hollow with pro-life voters next year if they don’t attend the summer hearings to learn for themselves the constitutional bona fides of the bill or at least offer some of their campaign and leadership PAC funds to pay for the expenses of legal experts who will come testify in support of the bill.

But if they don’t do those things, then in my book they need to come up with their own different and better vehicle, or give a credible, legally demonstrative explanation for why any attempt to seek Roe’s reversal is a constitutionally foolish errand.

Time will tell as to how pro-life this Republican majority is in the Senate, but this year time was not on the side of those pro-life activists who wanted to be leaders in the effort to overthrow Roe v. Wade, not just wish the best to others.


NOTES

  1. I do not say that in a pejorative way. I think the attorney general would agree that my jurisprudential philosophy and understanding of constitutional interpretation and, particularly, my more limited view of the judicial power are more conservative than his.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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FACT Files Rule 60 Motion in Williamson County Chancery Court

On Monday, the Constitutional Government Defense Fund, a strategic litigation initiative of The Family Action Council of Tennessee, filed a Motion for Relief from Judgment in the Chancery Court in Williamson County, Tenn., asking the court to set aside its earlier judgment dismissing the claims of five Williamson County residents related to the administration of Tennessee’s marriage licensing statutes by the Williamson county clerk following the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges.

Earlier this year, it was learned that the provisions in Tennessee’s Constitution that prohibit the state from licensing marriages between two people of the same sex were deliberately not enjoined by the federal court that heard the same-sex “marriage” lawsuit filed against Gov. Haslam.

The basis of the motion is those constitutional provisions still apply and they expressly make “void and unenforceable” “purporting to define marriage as anything other than the historical institution and legal contract between one man and one woman.”

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Oath-Keeping in the State Senate at Eastertime

Most Christians will celebrate Easter this Sunday and on Monday, the Tennessee Senate will vote on a motion that would pull the so-called “fetal heartbeat” bill out of the Senate’s Judiciary Committee to the floor of the Senate for debate and consideration. It’s called a Rule 63 motion, and it is rarely made. But these two consecutive days will give us a window into our state senators’ views on oath-taking compared to God’s.

The Seriousness With Which God Takes His Oaths

To put our consideration of political oaths in perspective, it would be good to consider how God looks at oaths He makes. One might say that the whole story of the Bible is about oath-keeping, specifically the revelation of how God kept His oath to fulfill His covenant.

While the details and significance of God’s oath and covenant are often little discussed today, Easter is about a “new” covenant, a covenant made by God with Jesus, who the Apostle Paul described as the “last Adam” and the “second man” (1 Corinthians 15:22, 45–47; see also Romans 5:12–17). In Jesus, Christians believe God kept His oath to fulfill the blessings flowing from the fidelity of Adam and his descendants to the covenant God swore to them as well as the sanctions flowing from their lack of fidelity thereto.

There is more that could be said about that, but here is the larger point relative to Monday’s Senate vote: Christ’s crucifixion, resurrection, and ascension is a clear demonstration of how seriously God takes oaths.

The Oath Our Legislators Take

This is the oath our legislators take when they are sworn into office:

I [full name of legislator] do solemnly swear (or affirm) that as a member of this General Assembly, I will, in all appointments, vote without favor, affection, partiality, or prejudice; and that I will not propose or assent to any bill, vote or resolution, which shall appear to me injurious to the people, or consent to any act or thing, whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this state. (emphasis supplied)

To appreciate what the oath affirms, it needs to be put in the context of what it does not affirm and what I know is weighing on some senators’ minds.

Why do I know what may be weighing on their minds? Because a Rule 63 motion was before me back when I was a senator (1996, I think), and to my knowledge that was actually the last time such a motion has been made in the state Senate.

Wrongly Redirecting Delegated Authority

Whether it’s abortion or any other issue, one thing that naturally weighs on a senator’s mind in a situation like this is how his or her vote affects his or her relationship to the Speaker and the consequences politically and legislatively of bucking the Speaker’s wishes.

But the first thing to note about a senator’s oath of office is that there is no oath of fealty to the Speaker to do as he or she wishes or commands.

In other words, to cast a vote tinged with a desire to please, placate, curry favor with, or avoid the wrath of a Speaker and not on the merits of the issue is “ injurious to the people,” because it does “lessen [and] abridge their rights and privileges, as declared by the Constitution of this state.”

How? For one thing, the people from 32 of the 33 Senate districts did not vote to have the Speaker represent them. Voters do not delegate the authority they hold under the Tennessee Constitution to a legislator for that legislator to then make a de facto delegation of that authority to the Speaker to vote as he or she wishes.

But for the Christian legislator, the issue runs deeper: The legislator must consider, Do I believe that a certain relationship with the Speaker necessarily determines my effectiveness as a legislator from God’s perspective? Put another way, do I believe the Speaker is more sovereign over legislative matters on which I work and my political future than God?

The Quasi-Sanctity of the Committee System

Given the foregoing, to me the weightiest argument for voting against a Rule 63 motion is the one I heard as a senator—preserving the sanctity of the committee system.

The argument is that the committee process provides for orderly and due consideration of proposed legislation, and that the process will be destroyed if senators start filing a Rule 63 motion every time he or she is unhappy with a committee’s decision. There is a real element of truth to that argument, given that thousands of bills are filed each year.

Thus, Rule 63 motions should not be made for light or transient reasons. If either the issue or the exigencies of the situation to be addressed by the legislation were not compelling, then I would leave the action of the committee alone. The issue can be dealt with again in the next legislative session.

Is There an Oath to Uphold the Committee System?

However, in a senator’s oath of office, there is also no oath of allegiance to the committee system established by Senate rules by which his or her conscience is bound.

Moreover, Rule 63 exists in order that senators fulfill the purpose of their oath of office. By it, the Senate body as a whole recognizes that man-made rules for the administration of business should not stand in the way of some things, like, perhaps, protecting and securing God-given rights.

Not protecting and securing God-given rights and making the will of the majority of nine senators the absolute will of the whole body is, to me, “injurious to the people” and definitely has “a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this state.”

Would I Vote for the Rule 63 Motion?

Now that we all know why Rule 63 exists, here are the questions I would have to ask and answer for myself and before God, given the oath of office:

  • If protecting an unborn child’s right to life and asserting to the federal judiciary the reasons why the rationale employed by its decades-old abortion precedents no longer pertains is not important enough for the Senate as a whole to debate, what issue would ever be? After all, we are not just talking about medical procedures or the relationship between abortion rights and adult sexual liberty, but about the life and death of other, innocent human beings who get none of the due process assured by the Constitution.
  • Would passage of this bill add any weight and gravity to the push for Roe’s reversal by other states, given our knowledge that the U.S. Supreme Court can be highly motivated by cultural mood swings, as happened with reversing a 40-year old precedent in regard to same-sex “marriage”? In other words, are there any exigencies to be taken into here?
  • Should I depend on other states and their lawyers1 to have written their fetal heartbeat bills well and to have made the most legally compelling arguments? In other words, if their potentially feeble efforts are enjoined, I can count on their failure being thrown in my face next session and no one listening to my explanation as to why our bill and arguments are different and we should go forward anyway.

I can’t speak for others, but my answers would cause me to vote for the motion, because it would seem good to me to get started sooner rather than later the litigation process by which the inalienability of the right to life will be defended or denied.

And, at least to my mind, I would expect the God who created that life and bestowed that right to take very seriously my oath to defend its2 taking without being afforded due process of law.


NOTES

  1. Some senators might point to the fact that the attorney general is not sure the bill can be upheld as constitutional. Perhaps his arguments don’t win in court, but forfeiting on the front end the opportunity to win doesn’t seem to be a good alternative. The fact is the Judiciary Committee members and the Speaker were given a legal argument for the bill along with law review articles and other materials supporting that argument. If senators are waiting until some attorney general tells them reversal of Roe v. Wade is a slam dunk win so that there’s no risk of putting money in the pockets of Planned Parenthood’s attorneys, then that will never happen. We have judges because lawyers don’t agree on what the law is or should be.
  2. If our attorney general cannot or will not defend an injury to the fundamental right to life with every argument he can marshal, then I have no doubt the two Speakers will serve their respective bodies by finding an attorney who will defend what the majority of them approved. Otherwise, each body can replace their Speaker if they have the political will to do so. The point is, there are always options, even if some are difficult or unpleasant to take. On more than one occasion, I directly bucked the express will of the Speaker with whom I served, so this complaint falls on deaf ears with me.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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