Every American should be used to this by now. Reprieves granted by the court for the cause of liberty, or morality are rare. Courts seem to be generally averse to protecting the constitutional rights of individuals, especially against government encroachment, and even more so to defending any basis of morality on the underpinnings of natural law and the created order.
On the eve of the legal enactment of a new Tennessee law protecting minors from exposure to lewd acts and performances, a Memphis federal judge granted a temporary restraining order (TRO) on behalf of a Memphis-based nonprofit, Friends of George’s (an LGTBQ Theatre Company). In granting this TRO, the judge enjoins the new law “prohibiting Governor Bill Lee, Attorney General Jonathan Skrmetti, and Shelby County District Attorney Steven Mulroy from enforcing Tenn. Code Ann. § 7-51-1407.”
Do not be so quick to conflate this incredibly ill-informed court action with progressive judicial activism or the actions of an Obama court appointee. No. This ruling is the handy work of a Republican, Trump-appointed federal judge and graduate of Vanderbilt Law accompanied by accolades from the likes of former US Senators Lamar Alexander and Bob Corker.
And the narrative is so fitting. In typical fashion here in Tennessee, we are not facing the impacts of the left or the Democratic Party. But, we continue to experience the tyranny of the Tennessee Republican Party, the establishment class that runs the show here in our state, and their ilk. And one has to wonder if this is all just by design.
It is important to understand the decision to grant this Memphis nonprofit standing in this case when juxtaposed against other conservative efforts to petition the court to defend our constitutional rights.
Over the last three years, Tennessee Stands worked to file several lawsuits on the basis of protection of both our national and state constitutions pertaining to the Governor’s emergency powers, mask mandates by county mayors and public school districts, and vaccine mandates for healthcare workers. And after six (or more) lawsuits on various grounds, we never got our day in court, much less an emergency order granted.
In the case of Off the Wagon v Lee (Davidson Chancery No. 20-0766-I, 2020), we intervened on behalf of a downtown Nashville business that had already been issued two (2) citations by Metro Nashville due to executive orders issued by Governor Bill Lee.
“Plaintiffs argue that the issuance of two citations by Metro for violations of Metro’s public health orders were premised on the Governor’s asserted emergency powers impermissibly delegated to Metro through the Governor’s executive orders. They claim Metro’s issuance of those citations, coupled with the threat of future citations and prosecution, are particularized injuries conferring standing for Plaintiffs to facially challenge the constitutionality of Tenn. Code Ann. § 58-2-107. As additional support for their position, Plaintiffs cite to a recent decision by the Michigan Supreme Court, holding that Michigan’s governor did not have the authority to exercise emergency powers under that state’s emergency powers act because it was an unconstitutional delegation of legislative power.”
It is a very reasonable argument to make that once a business has directly received one or more citations that the business has indeed experienced a particularized injury and additionally one that is immediate and not generalized. Yet in this case, the judge did not see it that way.
Standing, in this case, was denied, stating in the court order that
“the Court finds that the exercise of the Governor’s emergency powers under§ 58-2-107 through Executive Order 38, as extended, affects all citizens, business owners, and employers, in every county in Tennessee, either directly imposing guidelines issued by the Governor or indirectly imposing guidelines through delegation of the Governor’s authority to six metro county health departments. This sort of generalized injury, shared by all or a large class of Tennesseans, is not sufficiently particularized to confer standing on Plaintiffs.”
As a result, we never got our day in court and never got to simply ask the question, “were the Governor’s actions constitutional?” In fact, we know of at least two other cases making similar arguments asking the same question which were also thrown out of court based on standing.
In the meantime, businesses were being closed, fined, restricted, and eventually shuttered throughout the state with no opportunity to petition the court.
In another lawsuit, Citizens v Golden (Williamson County Chancery No. 20CV-49753 (2020), we asked a somewhat similar question to the court on behalf of parents and children in Williamson County Schools. Was the school district acting within its lawful statutory authority per Tennessee state law to require that students and faculty wear a mask (face covering) at all times regardless of emergency declarations?
And of course, the first test to pass is the question of standing. In similar fashion, the court states,
“To establish standing, Plaintiffs must allege an injury which is ‘distinct from that suffered in general by other citizens subject to the same law.’ Plaintiff’s standing may not be predicated upon an injury to an interest that the plaintiff shares in common with all other citizens.”
As the mask mandate in public schools applied to all students equally within the county (though the judge did not concern himself with the fact that other surrounding counties had NO mask mandate), the order stated
“Here, [the Plaintiff] has alleged no injury to her children which is not shared by the ‘undifferentiated mass’ of every public school student in Williamson County. ‘A plaintiff’s interest must be different from not only the general public, but also from any large class of citizens.’ [The Plaintiff] has not established standing to bring her claims against Defendants, and they are therefore DIMISSED.”
Are you beginning to see a pattern? In the modern system of justice in America, the doctrine of standing is used for one thing and one thing only. It is a “legal” way to deny justice to the people. It is an avenue for a judge to make his or her own determination as to whether or not they want to hear a particular case regardless of the merits of the actual substantive arguments being made. It also allows the judge to choose cases according to their political aspirations or ideological leanings.
And to quickly address Temporary Restraining Orders in much less detail, in 2021 we filed two (2) similar lawsuits, Condon v Ascension (NO. 3:21-cv-00728) and Garfield v MTSU (NO. 3:21-cv-00613).
Condon was in defense of a nurse facing job loss (and she was fired) due to requirements for the COVID-19 shot as a condition of employment. And Garfield was in defense of a nursing student facing dismissal from a college nursing program (and she was dismissed) due to the same requirements.
In both of these cases, the court was asked to grant a TRO to immediately and expeditiously protect these individuals from job loss and loss of educational opportunities, respectively. And due to the lack of response from the court, these individuals did certainly encounter both of those outcomes.
Yet in both cases, a Middle Tennessee federal district court judge, William “Chip” Campbell (another Trump appointee), DENIED these restraining orders citing that both plaintiffs were given plenty of notice for these pending mandates and therefore “[have] not clearly shown that [they] will suffer irreparable harm.” He subsequently dismissed both cases with no hearing on the merits of the argument.
And now to the matter at hand. A 501(c)(3) nonprofit in Memphis, TN petitions the federal court for a Temporary Restraining Order (TRO) citing that a new law passed by the Tennessee General Assembly (T.C.A. § 7-51-1407) will cause immediate and irreparable harm impacting ticket sales for a pending April 14th event, Drag Rocks.
Remember, immediately, this nonprofit organization has to pass two tests to be heard before the court. One, they must prove they have standing in the case by showing they will incur a distinct and palpable injury from the rest of Tennesseans affected by this state law. Second, they must prove that they face the threat of immediate and irreparable harm to be granted the emergency restraining order by the court which would in effect block this new law from going into effect on April 1st.
In all of our cases cited above when it comes to protecting the rights of individuals from emergency orders, mask and vaccine mandates and the like, citizens have no standing because supposedly, the injuries are not distinct and all Tennesseans are equally subject to the law (apparently meaning that your government can take your rights as long as they take those rights from everyone, equally).
Yet in this case, T.C.A. § 7-51-1407 is a state law that would bring criminal penalty to any citizen who exposes minors to lewd and sexualized performances. In other words, this law is applicable throughout the entire state and is no respecter of persons or groups of individuals.
But this Republican, Trump-appointed judge found that
“…Plaintiff has met its burden of proving both Article III and prudential standing. One of Plaintiff’s arguments, which the Court will discuss more fully below, is that the Statute is both vague and overly-broad. Plaintiff therefore has suffered an actual, concrete, and particularized injury in that it has a reasonable fear of prosecution for conducting shows similar to those it has performed in the past, which may be punishable by the Statute with criminal effect.”
What a standard! This judge grants a gay theatre standing simply because of their “fear” that something may happen in the future.
Let me ask you something. When we were pushing back against mandates in the courts, did you fear that you might be prosecuted for your disobedience to executive orders subject to a Class A Misdemeanor? Did you fear that you might lose your business? Did you fear that you might lose your job? Did you fear that you might experience health problems or death from being forced to endure experimental medical treatment?
The audacity of the court!
Now having standing, the court also GRANTS the emergency order citing
“Absent an injunction here, Plaintiff will be barred by criminal penalties from engaging in protected First Amendment expression. Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63, 67 (2020) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”) Because of the Statute’s vagueness and overbreadth, it is unclear whether Plaintiff’s performances may be penalized. If the Statute takes effect and Defendants prosecute Plaintiff, it will likely suffer irreparable harm with criminal sanctions. These penalties carry with them, among other things, potential loss of liberty and great reputational harm.”
Again, I ask you, under unconstitutional emergency orders and mandates from both government and corporate entities alike, did any of you face the “potential loss of liberty?” Wouldn’t you have liked to have been afforded the right to be heard in court and have your rights protected? Instead, you faced job loss, loss of your business, and loss of liberty on your own with no reprieve from the courts here in Tennessee.
And egregiously, this federal judge even acknowledges the following his court order:
“In the meantime, Plaintiff has to try to sell tickets while deciding whether it should add a previously unnecessary age restriction, cancel the show, or risk criminal prosecution or investigation. These are not trifling issues for a theatre company—certainly not in the free, civil society we hold our country to be.”
This judge claims that it is an affront to liberty and this LGBT nonprofit’s First Amendment right to simply place an age restriction on their drag show. And thereby acknowledges that all they must do to avoid any threat of prosecution and comply with this new law is to place an age restriction on their drag show.
What an absolute farce! The courts in Tennessee are a joke and clearly, Republicans and Trump-appointed judges are not going to change that.
The courts are no friend to conservatives and the defense of constitutional integrity, even with Trump appointees on the bench.
Every American should be used to this by now. Reprieves granted by the court for the cause of liberty, or morality are rare. Courts seem to be generally averse to protecting the constitutional rights of individuals, especially against government encroachment, and even more so to defending any basis of morality on the underpinnings of natural law and the created order.
On the eve of the legal enactment of a new Tennessee law protecting minors from exposure to lewd acts and performances, a Memphis federal judge granted a temporary restraining order (TRO) on behalf of a Memphis-based nonprofit, Friends of George’s (an LGTBQ Theatre Company). In granting this TRO, the judge enjoins the new law “prohibiting Governor Bill Lee, Attorney General Jonathan Skrmetti, and Shelby County District Attorney Steven Mulroy from enforcing Tenn. Code Ann. § 7-51-1407.”
Do not be so quick to conflate this incredibly ill-informed court action with progressive judicial activism or the actions of an Obama court appointee. No. This ruling is the handy work of a Republican, Trump-appointed federal judge and graduate of Vanderbilt Law accompanied by accolades from the likes of former US Senators Lamar Alexander and Bob Corker.
And the narrative is so fitting. In typical fashion here in Tennessee, we are not facing the impacts of the left or the Democratic Party. But, we continue to experience the tyranny of the Tennessee Republican Party, the establishment class that runs the show here in our state, and their ilk. And one has to wonder if this is all just by design.
It is important to understand the decision to grant this Memphis nonprofit standing in this case when juxtaposed against other conservative efforts to petition the court to defend our constitutional rights.
Over the last three years, Tennessee Stands worked to file several lawsuits on the basis of protection of both our national and state constitutions pertaining to the Governor’s emergency powers, mask mandates by county mayors and public school districts, and vaccine mandates for healthcare workers. And after six (or more) lawsuits on various grounds, we never got our day in court, much less an emergency order granted.
In the case of Off the Wagon v Lee (Davidson Chancery No. 20-0766-I, 2020), we intervened on behalf of a downtown Nashville business that had already been issued two (2) citations by Metro Nashville due to executive orders issued by Governor Bill Lee.
It is a very reasonable argument to make that once a business has directly received one or more citations that the business has indeed experienced a particularized injury and additionally one that is immediate and not generalized. Yet in this case, the judge did not see it that way.
Standing, in this case, was denied, stating in the court order that
As a result, we never got our day in court and never got to simply ask the question, “were the Governor’s actions constitutional?” In fact, we know of at least two other cases making similar arguments asking the same question which were also thrown out of court based on standing.
In the meantime, businesses were being closed, fined, restricted, and eventually shuttered throughout the state with no opportunity to petition the court.
In another lawsuit, Citizens v Golden (Williamson County Chancery No. 20CV-49753 (2020), we asked a somewhat similar question to the court on behalf of parents and children in Williamson County Schools. Was the school district acting within its lawful statutory authority per Tennessee state law to require that students and faculty wear a mask (face covering) at all times regardless of emergency declarations?
And of course, the first test to pass is the question of standing. In similar fashion, the court states,
As the mask mandate in public schools applied to all students equally within the county (though the judge did not concern himself with the fact that other surrounding counties had NO mask mandate), the order stated
Are you beginning to see a pattern? In the modern system of justice in America, the doctrine of standing is used for one thing and one thing only. It is a “legal” way to deny justice to the people. It is an avenue for a judge to make his or her own determination as to whether or not they want to hear a particular case regardless of the merits of the actual substantive arguments being made. It also allows the judge to choose cases according to their political aspirations or ideological leanings.
And to quickly address Temporary Restraining Orders in much less detail, in 2021 we filed two (2) similar lawsuits, Condon v Ascension (NO. 3:21-cv-00728) and Garfield v MTSU (NO. 3:21-cv-00613).
Condon was in defense of a nurse facing job loss (and she was fired) due to requirements for the COVID-19 shot as a condition of employment. And Garfield was in defense of a nursing student facing dismissal from a college nursing program (and she was dismissed) due to the same requirements.
In both of these cases, the court was asked to grant a TRO to immediately and expeditiously protect these individuals from job loss and loss of educational opportunities, respectively. And due to the lack of response from the court, these individuals did certainly encounter both of those outcomes.
Yet in both cases, a Middle Tennessee federal district court judge, William “Chip” Campbell (another Trump appointee), DENIED these restraining orders citing that both plaintiffs were given plenty of notice for these pending mandates and therefore “[have] not clearly shown that [they] will suffer irreparable harm.” He subsequently dismissed both cases with no hearing on the merits of the argument.
And now to the matter at hand. A 501(c)(3) nonprofit in Memphis, TN petitions the federal court for a Temporary Restraining Order (TRO) citing that a new law passed by the Tennessee General Assembly (T.C.A. § 7-51-1407) will cause immediate and irreparable harm impacting ticket sales for a pending April 14th event, Drag Rocks.
Remember, immediately, this nonprofit organization has to pass two tests to be heard before the court. One, they must prove they have standing in the case by showing they will incur a distinct and palpable injury from the rest of Tennesseans affected by this state law. Second, they must prove that they face the threat of immediate and irreparable harm to be granted the emergency restraining order by the court which would in effect block this new law from going into effect on April 1st.
In all of our cases cited above when it comes to protecting the rights of individuals from emergency orders, mask and vaccine mandates and the like, citizens have no standing because supposedly, the injuries are not distinct and all Tennesseans are equally subject to the law (apparently meaning that your government can take your rights as long as they take those rights from everyone, equally).
Yet in this case, T.C.A. § 7-51-1407 is a state law that would bring criminal penalty to any citizen who exposes minors to lewd and sexualized performances. In other words, this law is applicable throughout the entire state and is no respecter of persons or groups of individuals.
But this Republican, Trump-appointed judge found that
What a standard! This judge grants a gay theatre standing simply because of their “fear” that something may happen in the future.
Let me ask you something. When we were pushing back against mandates in the courts, did you fear that you might be prosecuted for your disobedience to executive orders subject to a Class A Misdemeanor? Did you fear that you might lose your business? Did you fear that you might lose your job? Did you fear that you might experience health problems or death from being forced to endure experimental medical treatment?
The audacity of the court!
Now having standing, the court also GRANTS the emergency order citing
Again, I ask you, under unconstitutional emergency orders and mandates from both government and corporate entities alike, did any of you face the “potential loss of liberty?” Wouldn’t you have liked to have been afforded the right to be heard in court and have your rights protected? Instead, you faced job loss, loss of your business, and loss of liberty on your own with no reprieve from the courts here in Tennessee.
And egregiously, this federal judge even acknowledges the following his court order:
This judge claims that it is an affront to liberty and this LGBT nonprofit’s First Amendment right to simply place an age restriction on their drag show. And thereby acknowledges that all they must do to avoid any threat of prosecution and comply with this new law is to place an age restriction on their drag show.
What an absolute farce! The courts in Tennessee are a joke and clearly, Republicans and Trump-appointed judges are not going to change that.
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Gary Humble
Gary Humble