City of Houston to Pastors: Show Us Your Sermons

Last week, the city of Houston issued subpoenas to five local pastors for “all speeches, presentations, or sermons related to HERO [Houston Equal Rights Ordinance], the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”

One provision of the ordinance that started the controversy would allow people access to restrooms of the opposite sex if they identify as transgender. Citizens who opposed the measure initiated a petition drive to put a repeal referendum on the ballot, collecting thousands of signatures in the process. The city attorney rejected the petition, claiming irregularities affecting many of the signatures (over 50,000 were submitted for the required number of 17,259). Some of the citizens associated with the petition sued, which prompted lawyers representing the city to issue the subpoenas to, in the words of a Houston Chronicle story, “several high-profile pastors and religious leaders who have been vocal in opposing the ordinance.” This despite the fact that the pastors were not actually parties involved with the lawsuit.

Should the city of Houston be able to issue these subpoenas? What are the larger implications of the situation? And should the pastors comply? Some relevant thoughts from around the web:

1. Regarding the legal situation, Mark Movsesian writes:

Now, given the rules of pretrial discovery, one must concede that there is some plausibility in the city’s argument—some. In an American lawsuit, attorneys can ask for all sorts of information before trial, even if that information is not strictly relevant to the litigation, as long as the information seems reasonably likely to lead to relevant and admissible evidence. …

But there are other very important considerations. The broad standard for discovery can lead to so-called “fishing expeditions” that seek to harass and intimidate litigants and encourage them to back off. As a result, courts generally have wide discretion to reject requests for information that are overly broad and unduly burdensome to the opposing party. In a context like this one, which raises very sensitive First Amendment concerns, courts must be especially careful.

Ed Whelan also comments on Mayor Parker’s claim, via tweet, that “if the 5 pastors used pulpits for politics, their sermons are fair game”:

Pastors have the same First Amendment rights that everyone else has, and they may use their pulpits for whatever lawful purposes they choose—yes, including politics.

If a pastor’s church is a 501(c)(3) organization under federal tax law, federal guidance bars (or at least purport to bar) the church from “directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” But it says nothing against giving instructions on a referendum petition. And even if it did, that would be a matter between the IRS and the church, not any business of the mayor’s.

(Mayor Parker has apparently backtracked somewhat since the aforementioned tweet.)

2. As for the larger implications of the Houston city government issuing the subpoenas, here’s a quote from the Alliance Defending Freedom, which filed a motion to quash them:

The message [behind the subpoenas] is clear: oppose the decisions of city government, and drown in unwarranted, burdensome discovery requests. These requests, if allowed, will have a chilling effect on future citizens who might consider circulating referendum petitions because they are dissatisfied with ordinances passed by the City Council.

And Russell Moore adds this:

When the government acts, legal precedents are set. By complying with this unjust decree, Christians would be binding future people and institutions, including those who are the most powerless to stand against such things. If the government can scrutinize the preaching of Christian churches on sexual matters in Houston, the same government could do the reverse in, say, Amarillo. It would be just as wrong for the mayor to demand to see sermons from the Episcopal Church calling for LGBT anti-discrimination laws as it is to do this.

3. And so, should the pastors comply? Here’s Moore:

 Every authority, under God, is limited. Daniel is obedient to King Nebuchadnezzar [sic], until the king decreed the way prayers should be offered. Peter and John are obedient to the authorities, until they are told how to preach, in which case they defy this authority (Acts 4:19-20).

And again in the same post:

Yes, the mayor and the city attorney should see sermons. And that’s why I think all of those not subpoenaed should freely send their sermons in, in solidarity with those who are under this subpoena. And that’s also why I think those under the subpoena should refuse to do so. The Apostle Paul left Philippi, just as the magistrates wanted him to do, but he didn’t move an inch until the magistrates’ command to do so was revoked (Acts 16:37-39). Peter and John didn’t stay, all the time, in the temple court preaching Jesus. But they didn’t cease while they were under orders to do so (Acts 4:21-23).

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