By / Oct 20

A few months back, the Solicitor General of the United States argued before the Supreme Court that if you engage in business, you give up certain legal protections for your religious conscience.

Justice Alito, who penned the majority opinion rejecting the Solicitor General’s argument, framed the government’s argument as follows: “HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.”

Five justices rejected the government’s argument and, instead, declared there to be broad legal protections of religious liberty within federal law.  Such protections safeguard the guarantees of religious liberty as found in the First Amendment.  “Is there any reason to think,” wrote Justice Alito on behalf of the majority, “that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS suggests?”

The Court affirmed the right of a businessman to retain his constitutional freedoms when entering the marketplace.  A mayor in Houston recently extended the Solicitor General’s bad argument a step further.  By serving subpoenas on five pastors, the City of Houston thinks it has found a new activity that is “inconsistent” with the legal protections arising under the law: preaching in a manner that displeases the Mayor.

Like the scenario in Hobby Lobby, pastors in the largest city in the reddest state in the Union have been put on notice: when you enter the pulpit, you shed your constitutional rights to freely exercise your religion, freely speak your mind, or freely dissent from the Mayor’s New Sexual Orthodoxy.  Such acts of naked political intimidation cannot pass muster under the “sweeping protections” for religious liberty under federal and state law or an unbroken line of First Amendment cases.

Rendering Only What Caesar is Due

During litigation, attorneys may seek information through subpoenas, depositions, requests for production, interrogatories, and other discovery methods – but the requests must be “reasonably calculated to lead to discoverable information.”  Clergy are most clearly protected under the “priest-penitent” and “pastor-parishioner” privileges.  These privileges foreclose production of any personal communications from the pastor to the parishioner, and vice-versa, that was shared in confidence.

More importantly, individual citizens – especially clergy – may not be targeted for burdensome and vexatious discovery as a means of silencing Free Speech or interfering with the Free Exercise of religion.

The Mayor and her attorneys targeted the pastors – non-parties to the underlying litigation – because, as pastors have done throughout the history of our nation (and, broadly, the history of the world), they engaged the controversial issues of the day, bringing the Christian worldview to bear upon it, teaching their parishioners how to think through such moral-political issues, and prophetically speaking against what they perceived as an immoral action of their government.

Little has been more sacrosanct – legally and morally – in this country than the right of pastors to instruct their flock.  But the Mayor and the City of Houston seem to have a different view on the First Amendment, Free Speech, and the Free Exercise of religion: pastors who lawfully talk about politics as fair game: “If the 5 pastors used their pulpit for politics, their sermons are fair game.”

Fair game for what?  Each pastor stated that he would welcome the Mayor into their church and offer to print copies of any sermon on any topic.  That is the nature of evangelical outreach.  But Mayor Parker does not come with a humble heart and mind seeking to understand the Christian faith.  Instead, she is using the awesome power of her office to intimidate pastors who dissent from her heavy-handed – and potentially unlawful – enforcement of the orthodoxy she prefers.

What Mayor Parker forgets is that pastors are never obliged to render unto Caesar that which Caesar has no right to require.

As Abraham Kuyper once observed, “The sovereignty of the State and the sovereignty of the Church exist side by side, and they mutually limit each other.” The conflict on display here is one in which the church has justly acted to limit the authority of the state on legislating matters of morality, but the state has acted unjustly to limit the right of the church to speak on such matters.

Unmasked, what the mayor of Houston has attempted here is to intimidate the men of the pulpit.  When government takes such steps to intimidate the use of the pulpit or, worse, to seize control of it, we are left with no other choice but to call such action tyranny.  This is not the request made by one who seeks to understand the faith that has “once, for all, been delivered to the saints;” it is a legal tactic designed to hoist the sermonizers of Houston on the pike for all the nation to see, “Thus always to bigots.”

Let us learn from history.  Tyrants throughout history routinely sought to seize control of the pulpit in order to consolidate their power.  Ask Alexander Solzhenitsyn, Martin Niemöller, and Dietrich Bonhoeffer of the last century how the Bolsheviks and Third Reich deceived, divided, and destroyed the religious liberty of their citizens through the intimidation of their churches.

Is Mayor Paker’s subpoena a newer, more refined version of the dictator’s henchman?  Only time will tell.  Meanwhile, let us never think that persecution comes to the church of America in shiny riding boots beneath black uniforms with lightning bolts on the collars.  Persecution comes with more stealth, sometimes masked by that which seems perfectly legal.

“Do What You Wish”

If the Mayor and the City of Houston persist in persecuting religious dissenters – even as they purport to “narrow the scope” of their unlawful subpoena, the Church must respond with winsome resolve.

Few in this world responded to persecution with such convivial tenacity as Polycarp.  This martyr of the first century is famous for his unbending dedication to his Savior.  Polycarp burned, unbound, at the stake for the name of Christ, but he did not walk there without a defense.  His contemporary church urged him to evade capture when the warrant for his arrest was issued, which he did for some time.  This elderly churchman eluded a search party of Roman soldiers for months before finally being turned-in by a friend threatened with torture.  When Polycarp stood before the proconsul, he refused to recant.

Even the proconsul understood the optics of executing an octogenarian and plied the man to recant to save the inevitable.  This church father, who had spent a lifetime evangelizing any who would humbly listen, refused to grant Caesar an illegitimate audience. “Listen carefully,” Polycarp said, “I am a Christian.  Now if you want to learn the doctrine of Christianity, name a day and give me a hearing.”

The proconsul challenged Polycarp to persuade the watching people of Rome, now bloodthirsty for his execution.  Polycarp replied, “You [sic] I might have considered worthy of a reply, for we have been taught to pay proper respect to rulers and authorities appointed by God, as long as it does us no harm; but for these, I do not think they are worthy, that I should have to defend myself before them.”

The proconsul threatened, “I have wild beasts; I will throw you to them, unless you change your mind.”  Polycarp replied, “Call for them!”

“I will have you consumed by fire, since you despise the wild beasts,” continued the proconsul.

“You threaten with a fire that burns only briefly and after just a little while is extinguished,” proclaimed the aged bishop of Smyrna, “For you are ignorant of the fire of the coming judgment and eternal punishment, which is reserved for the ungodly.  But why do you delay?  Come, do what you wish.”

Let these be the words on the lips of every pastor in Houston, Texas, who have been summoned by their government to submit their sermons for examination to those who seek only to do them harm.  Let us each, likewise, pay proper respect to the rulers and authorities that have been appointed over us by God, so long as it harms not our conscience before God.  When threatened with arrest, let us make every just and legal effort to avoid such an unjust sentence.  Yet, when the state refuses to limit itself, let us ignore the threats of fines and jail and reply steadfastly, “Come, do what you wish.”

Therefore, be encouraged by the admonition of Kuyper: “[H]owever powerfully the State may assert itself and oppress the free individual development, above that powerful State there is always glittering, before our soul’s eye, as infinitely more powerful, the majesty of the King of kings, Whose righteous bar ever maintains the right of appeal for all the oppressed, and unto Whom the prayer of the people ever ascends, to bless our nation and, in that nation, us and our house.”

By / Oct 16

Public outrage is spreading over the City of Houston’s attempt to force pastors to hand over their sermons and other communications in a case where they are not parties. Just after midnight on Wednesday, Houston Mayor Annise Parker tweeted in defense of her subpoenas, saying pastors’ sermons are “fair game” if they concern an issue where the pastors have opposed government policy. Then Wednesday afternoon her office went into damage control, declaring the subpoenas were a surprise to the city. But around 8 pm Wednesday night the mayor tweeted again in support of an ideological commentary piece that defended the subpoenas. So it seems that the mayor was for the subpoenas both before and after she was against them.

Legal commentary has been skeptical of the city’s sermon demand, but some are still a little too sanguine about it. One is Professor Eugene Volokh. He correctly points out that the First Amendment requires scrutiny on discovery requests of people engaged in free speech. But when he suggests that the pastors might “in principle” be subpoenaed, he cites several cases that are not squarely applicable.

In Houston the pastors are not suing, being sued, helping a criminal investigation, or violating any law. They are being subpoenaed solely because they engaged in free speech and petitioning of the government, and they are being targeted by the government who disagrees with them. This makes the First Amendment interests much stronger than in the situations Professor Volokh cites, where people were sued for harassment or employment discrimination, or were asked to testify at a grand jury’s investigation of a crime, or had brought their own lawsuit and thus were subject to discovery. The pastors here are simply community members who exercised their First Amendment rights against a governmental policy. In fact, in the existing lawsuit it is the government that is accused of wrongdoing (by denying citizens the right to vote on a “bathroom bill”). The First Amendment does not let the government violate citizens’ rights and then, when it gets sued, use court rules as a sword to attack the advocacy rights of its political opponents.

In several cases that Prof. Volokh did not discuss, federal appellate courts have imposed some rigorous requirements in the balancing test used to weigh First Amendment interests against discovery requests. These cases show that the subpoenas here are illegitimate and are not analogous to cases where a pastor is a defendant in a case.

First, while the ordinary discovery standard can merely require that the request be calculated to find any relevant evidence, a request aimed at non-party free speakers requires that the discovery be “highly” relevant, “crucial” to the litigant’s case, and that it go to “the heart of the matter.” Perry v. Schwarzenegger, 591 F.3d 1147, 1161 (9th Cir. 2010); Black Panther Party v. Smith, 661 F.2d 1243, 1268 (D.C. Cir. 1981); Zerilli v. Smith, 656 F.2d 705, 713 (D.C. Cir. 1981) (same). This lawsuit is about whether the city violated its legal duties by refusing to let the people vote on a bathroom bill. There no relevance, much less “high” relevance, between that issue and what pastors in Houston said about that law (or about anything else).

Second, even if the information sought could be shown to be “highly relevant,” the same cases say it must also be “otherwise unavailable,” the litigant must “exhaust […] every reasonable alternative source” before demanding it from First Amendment actors, and the litigant is “required to attempt to seek information from other likely and reasonably accessible sources.” See id. Perry, Black Panther Party, and Zerilli; see also

Internat’l Union, UAW v. National Right to Work Legal Defense & Education Foundation, Inc., 590 F.2d 1139, 1152 (D.C. Cir. 1979). The information the city needs to defend this case is entirely available from other sources. The actual plaintiffs in the case are the supporters of the petition the city denied, so the city can simply ask them for evidence about the petition process. There is no need to attack non-party pastors with demands for their sermons and communications.

Third, any request impacting First Amendment rights must be “carefully tailored to avoid unnecessary interference with protected activities.” Perry, 591 F.3d at 1161. Careful tailoring precludes the sort of dragnet language often found in discovery requests (demanding “all documents related to” something). Here the city’s demands are massively broad, and they cannot be legitimately narrowed because no specific document that the city wants will be sufficiently relevant to the case. If the city did actually request a specific document, it would be shown to be insufficiently relevant. So lawyers wanting to sustain overbroad subpoenas like this will fight tooth and nail not to name a specific document, but to keep the requests as generic as possible by asking for documents “related to” an issue. They’ll just claim that because the issue is relevant, all documents “related to” it must be too. That kind of request fails both the careful tailoring and highly relevant standards. It is a smokescreen pretending to be narrow, but hiding the fact that all the specific documents within its scope are not crucial enough to the case to trump the pastors’ First Amendment interests.

Rigorous First Amendment protection is needed against government discovery requests to non-parties. Otherwise a citizen’s mere exercise of First Amendment protected activity (like petitioning its government to vote on a controversial law) could subject the citizen to broad document and deposition subpoenas that would dissuade her from speaking in the first place. If court rules are interpreted to allow those burdens—especially if the citizens have publicly opposed the government that is subpoenaing them—it would likely suppress citizen participation in representative government. Citizens would fear that if they publicly advocate and lose the issue, they will be dragged into court by their political opponents, need to hire attorneys, be forced to hand over their private documents and be subjected to hostile depositions. That is far too high a price to impose both on citizens themselves and on the robust dialogue and public participation that are necessary in order to maintain a free society. It is an inquisition tactic used by a government that will not tolerate any dissent from or checks on its power.