What’s the controversy in Houston about?
This summer the Houston City Council, with the support of mayor Annise Parker, passed the Houston Equal Rights Ordinance (HERO) by a vote of 11-6. HERO extended protections against discrimination to cover homosexuality and transgenderism. Many local residents, including some pastors in the area, opposed the ordinance and supported a citizen initiative to have the council either repeal the bill or place it on the ballot for voters to decide.
Although the initiative was certified by the City Secretary, the mayor and city attorney threw out the petition claiming it was invalid. This sparked a lawsuit by the initiative supporters, Woodfill v. Parker. The city’s attorneys subpoenaed a number of area pastors, demanding to see what they preach from the pulpit and to examine their communications with their church members and others concerning the city council’s actions. Some of the pastors who received the subpoena were not even involved in the initiative.
What types of documents were requested under the subpoena?
The subpoena covers almost every type of communication related to HERO, the mayor, or the petition initiative. The most controversial wording in the subpoena was this clause:
All speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.
Does the city government have a right to subpoena the pastors?
A case could be made that if the sermons were construed as electioneering (persuading voters as part of political campaign) that such communications could be relevant to the lawsuit. But the subpoena also requested all sermons about homosexuality and gender identity. This was a clear-cut case of overreach and has been construed as attempting to suppress the free speech rights of the pastors.
As legal scholar Eugene Volokh says,
At the very least, the subpoena seems vastly overbroad. And the fact that it seeks the contents of religious speeches does counsel in favor of making the subpoena as narrow as possible (which would likewise be the case if it sought the contents of political speeches). I’m not sure what sort of legally relevant information might be contained in the subpoenaed sermons. But the subpoena ought to be narrowed to that legally relevant information, not to all things about homosexuality, gender identity, the mayor, or even the petition or the ordinance.
Why would the pastors have a problem with providing their sermons?
Sermons are public utterances, so most pastors would have few qualms with giving a copy to anyone who asked — even a government official. The concern is with the idea that a city government has the authority to scrutinize a sermon to determine whether it fits within the limits of what government officials deem to be politically acceptable.
Another concern is with the use of government power to intimidate pastors into not speaking out on issues such as homosexuality. As the Alliance Defense Fund notes in a legal motion to quash the subpoenas,
It appears they were designed to punish the Nonparty Pastors for being part of the coalition that invoked the City Charter’s referendum provision, and discourage them and other citizens from ever doing so again. The message is clear: oppose the decisions of city government, and drown in unwarranted, burdensome discovery requests.
What happens now?
The Alliance Defending Freedom, a legal organization that advocates for “the right of people to freely live out their faith”, has filed a motion in a Texas court to have the subpoenas either “quashed in their entirety” or have the Court grant a modification of the discovery requests that clarifies that they do not include the requested documents that are not reasonably calculated to lead to the discovery of admissible evidence and the requested documents protected by the First Amendment privilege.
Additionally, a spokesperson for the city says that Houston’s mayor was surprised by the supoenas,
Mayor Parker agrees with those who are concerned about the city legal department’s subpoenas for pastor’s sermons. The subpoenas were issued by pro bono attorneys helping the city prepare for the trial regarding the petition to repeal the new Houston Equal Rights Ordinance (HERO) in January. Neither the mayor nor City Attorney David Feldman were aware the subpoenas had been issued until yesterday. Both agree the original documents were overly broad. The city will move to narrow the scope during an upcoming court hearing. Feldman says the focus should be only on communications related to the HERO petition process.
See also: #4Houston5: Stand with Houston pastors
Image Credit: Jordan Cooper