Houston Seeks To Subpoena Sermons Of Pastors Opposing Gay Rights Law

Someone needs to remind the City of Houston that the First Amendment applies to them.

church-state-street-signs

There is presently a debate going on in the City of Houston over an ordinance barring discrimination based on sexual orientation, a measure that many American cities have adopted in recent years and which is similar to the Employment Non-Discrimination Act which has been languishing in Congress since President Obama took office. The ordinance easily passed the City Council earlier this year, not withstanding the strong opposition of  many members of the Christian community in Houston, including Pastors who have contended that the law threatens to impinge on their First Amendment rights and their ability to run their churches as they see fit. Several of those groups later joined together to get a measure on the ballot that would give residents the ability to repeal the ordinance. The group submitted their signatures, but the City Attorney later determined that enough of the signatures were invalid such that they had failed to submit enough valid signatures. In response, a lawsuit was filed to overturn that decision and allow the referendum to go forward which the city later removed to Federal Court. Given the fact that the Mayor of Houston, Anise Parker, the debate over the law has apparent gotten quite heated and, recently, the city has attempted to subpoena copies of the sermons of many of the Pastors who have been most outspoken against the law and are tied to the groups that have initiated these lawsuits:

Houston’s embattled equal rights ordinance took another legal turn this week when it surfaced that city attorneys, in an unusual step, subpoenaed sermons given by local pastors who oppose the law and are tied to the conservative Christian activists that have sued the city.

Opponents of the equal rights ordinance are hoping to force a repeal referendum when they get their day in court in January, claiming City Attorney David Feldman wrongly determined they had not gathered enough valid signatures to qualify for the ballot. City attorneys issued subpoenas last month during the case’s discovery phase, seeking, among other communications, “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.”

The subpoenas were issued to several high-profile pastors and religious leaders who have been vocal in opposing the ordinance. The Alliance Defending Freedom has filed a motion on behalf of the pastors seeking to quash the subpoenas.

Since the city is not commenting beyond the subpoena’s, it’s hard to know exactly what they are looking for here, or what they think that they could uncover that would be admissible in a Court of law on the issue of signature gathering. This isn’t, it should be noted, a question of the city challenging the tax exempt status of the churches due to political advocacy and, even if it were, the rules governing such things are generally matters of Federal law, not state law, and certainly not the laws of one city in one state. More importantly, the rules about tax exemptions for religious institution do not prevent churches and Pastors from taking stands on political issues of the day or even advocating certain positions. If they did, then people like Martin Luther King Jr. would have been violating those rules throughout the Civil Rights Movement.  According to some reports, the city is arguing that the churches were engaging in supposedly illegal campaigning by backing the repeal measure and helping to organize the signature, but even if that’s true it strikes me that any law that would prevent such activity would be a violation of the First Amendment rights of both the churches and the Pastors themselves, not to mention being a pretty extreme intrusion by the state into the church’s operations.

As Eugene Volokh notes in his post on this issue, it probably isn’t a per se violation of the First Amendment for a government entity, or a private entity, to seek to subpoena a Pastor’s sermons because there may be some circumstances where those sermons would be relevant to an ongoing legal matter. The two examples he uses involve a hypothetical situation where someone sues a Pastor claiming that he was slandered in a sermon and an employee employed in a non-religious capacity suing for sex discrimination who alleges that the Pastor admitted in a sermon that he fired that employee for a reason banned by Federal law.  Obviously, in those types of case the sermon or sermons alleged to contain the slanderous material would be considered discoverable in a civil proceeding, and enforceable by court subpoena. As Volokh notes, though, the subpoena the city issued here seems to be incredibly over broad, not the least because it asks for material that has nothing at all to do with the subject matter of the lawsuit:

I don’t quite see how “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” would be relevant to the litigation about the validity of the referendum petitions.

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.

(…)

[W]hile sermons are generally not intended to be as confidential as the names of journalists’ sources, there is still good reason to limit demands for the text of sermons when the text is irrelevant and therefore unnecessary to any legal decisionmaking. Such demands create a feeling of surveillance that may indeed deter or dampen some kinds of religious speech. And while such deterrence or dampening is constitutional when relevant information is subpoenaed (just as it’s constitutional as to subpoenas related to editorial meetings and tenure reviews), it should be avoided and minimized in cases where the subpoenaed information is entirely or largely legally irrelevant.

Volokh also notes that Texas has its own version of the Religious Freedom Restoration Act, the law that was at the heart of this summer’s Hobby Lobby decision. Under that statute, a Pastor who is subject to a subpoena could argue that revealing the text of his sermons would violate the free exercise of religion. In that case, the city would then have to show that it is using the least restrictive means to achieve whatever goal it is attempting to achieve with this subpoena. While I’m unaware of any case where the Federal RFRA or any of its state equivalents was used in this type of situation, the Supreme Court’s ruling this summer shows us that the “least restrictive means” test would be a hard one to overcome, and that the significant breadth of this subpoena would likely mean that an RFRA challenge would be successful.

Like Volokh, I agree that there isn’t a per se  bar against subpoenas directed at a Pastor’s sermon, In addition to the examples that he cites, there are other obvious examples where such a subpoena would be relevant to an underlying lawsuit or criminal proceedings. It’s even possible that a more narrow document request in this case would be acceptable under the law. In it’s current form, however, it seems pretty clear that the City’s subpoena request, which some are alleging to be an attempt at political intimidation, is far too broad and ought not to be allowed to proceed forward. Narrowness is something that is called for whenever documents are subpoenaed like this, but it would seem to be something that ought to be especially important when significant First Amendment issues are involved, as they clearly are in this case.

Here are links to the subpoena request and the memorandum in support of the motion to quash the subpoenas.

Update: Houston appears to have backed down.

FILED UNDER: Law and the Courts, Religion, US Politics
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed for too young in July 2021.

Comments

  1. grumpy realist says:

    Rod Dreher is freaking out about this case and those of us with legal experience are trying to talk him down from the ledge of the building. Thanks for your reasoned explanation.

    (This looks like bog-standard litigation discovery tactics, nothing more. Always ask for the Moon, even if you realize it’s unreasonable. We call it a “fishing expedition”, carried out in hopes that you may stumble over evidence of another cause of action.)

    But of course, to Rod, it’s Teh End of Teh World!!!!

  2. @grumpy realist:

    It does seem like over-the-top discovery but in the context of the FIrst Amendment issues this clearly raises I would think that the City Attorney would have been more careful in drafting his requests.

    And Rod freaks out about something every other week I think.

  3. Pinky says:

    This has got to be a hoax or an internet-driven distortion. I can’t imagine that this is what it sounds like.

  4. Gustopher says:

    This wouldn’t be a problem at all if we weren’t granting special tax status to chitches in the first place. Let them fall in with any other social group, and keep their social work financially separate from their religious activities.

  5. humanoid.panda says:

    @Pinky: It sounds like religious people and organizations are not in fact above the laws the rest of us must follow, and that when they litigate, plaintiffs actually don’t have to surrender to their demands? The horror!

  6. Tyrell says:

    And they said that this would not happen, that churches would not be interfered with, and would be left alone. It is already happening. Soon pastors, church leaders, Sunday school teachers, youth leaders, and even members will be arrested and attempts will be made to silence them. I am going to send copies of the news article to all the local churches so that they can be prepared.
    We are on the road to the destruction of the US Constitution !!

  7. Modulo Myself says:

    First, the religious groups are lying if they say the ordinance affected them. It did not. Churches were exempt.

    Second, the lawsuit is about reinstating signatures, and since sermons may have been used to enlist people in the petition drive, it’s not any different than any request for documents in a lawsuit. If say a hall owned by the church burned down and killed fifty people enjoying a pot-luck dinner and the church knew that was it not up to code, and someone wanted to sue a church for negligence, they could use a sermon as evidence if the minister said come to the potluck dinner.

  8. humanoid.panda says:

    @Tyrell:

    And they said that this would not happen, that churches would not be interfered with, and would be left alone. It is already happening. Soon pastors, church leaders, Sunday school teachers, youth leaders, and even members will be arrested and attempts will be made to silence them.

    You impossible moron: THE DAMN CHURCH SUED THE CITY GOVERNMENT. YOU DON’T GET TO WIN AUTOMATICALLY IN COURT IF YOU ARE A CHURCH. THIS IS NOT HOW LIFE WORKS.

  9. wr says:

    @humanoid.panda: Funny how it wasn’t the end of the Constitution when the Bush administration was leaning hard on Pasadena’s All Saints Church for the terrible crime of hosting anti-war sermons.

    Oh, and by the way — that was wrong, and if that’s all that’s going on here, this is wrong, too.

  10. humanoid.panda says:

    @wr: Actually, the situation back then was way, way worse than now. The Pasadena all Saint’s Church didn’t sue anyone for anything; the religious organizations did. They choose to get involved in litigation, a secular process, and now have to pay by the rules of that process. However, their basic conception of constitutional law is that of spoiled children: rules exist only to the extent they serve to give me things I want. Otherwise, rules are tyranny.

  11. humanoid.panda says:

    @humanoid.panda: This doesn’t mean that the subpoena is proper of course. It just means that even if it is ruled as being to wide, it is not evidence of any kind of persecution.

  12. Scott says:

    @Tyrell: Oh, nonsense. This is just lawyers being lawyers. The political dimension of this probably didn’t occur to them.

    BTW, the right freaks out about criminalization of politics. The reality is there is a constant attempt to politicize crime.

  13. superdestroyer says:

    @Gustopher:

    EVeryone wanted to know what the next battlefield in the culture war was going to be. And know we have our answer: tax benefits for organized religion and organized religion discriminating against homosexuals. But everyone should remember to answer bet on the homosexuals getting what they want no matter what they have promised in the past.

  14. humanoid.panda says:

    @superdestroyer: Again. The city passed an anti-discrimination ordinance that explicity exempts religious organizations. Religious organizations spearheaded a repeal referendum drive. The city authorities found many signatures they gathered were not eligible.Religious organizations are suing the city. The city’s lawyers asked for all sorts of things in the discovery process.

    Where is exactly the part where homosexuals are going after your body fluids and/or

    tax benefits for organized religion and organized religion discriminating against homosexuals.

    ???

  15. JR Buckley says:

    I really don’t understand Volokh’s cited reference to RFRA. How can subpoenaing a copy of a sermon that was delivered in public (meaning anyone who walked into church that day could have heard it first hand from the pastor’s own mouth) conflict/interfere with free exercise of religion?

  16. Gavrilo says:

    This is just an intimidation tactic. The law used to invalidate the petition signatures is unconstitutional. The Supreme Court has already ruled that state law cannot require petition circulators to be registered voters. A federal judge in Michigan recently decided the same when John Conyers was reinstated on the ballot even though he didn’t qualify with enough valid signatures under the state law.

  17. jadedhavwn says:

    This lawsuit was brought about by politically active GOP leaders who are also closely engaged with the area’s far right Christian coalition.

    They tried to repeal the law by signature referendum and failed. They considered placing it on the November ballot for public repeal, figured they lose, so went with a lawsuit instead.

    Considering these people chose church pulpits to rally their political cause, I fail to see any substantial reason why key sermons advocating political action should be considered off limits by the courts.

    Last time I checked, tax exempt status for religious institutions came with a few specific caveats.

    Break those, the gloves come off.

  18. HarvardLaw92 says:

    The First Amendment is a bar against prior restraint, not so much one against the potentially punitive consequences of speaking. It’s certainly not a get out of jail free card with respect to violating otherwise legitimate statutory law.

  19. HarvardLaw92 says:

    @JR Buckley:

    Volokh and the other usual suspects are convinced that the RFRA translates t0 “we can do whatever we want – however odious, illegal or unconstitutional – as long as we claim that it was done under the auspices of religion,and there is nothing that you can do about it.”

  20. MBunge says:

    @Doug Mataconis: And Rod freaks out about something every other week I think.

    I’m beginning to wonder if Rod isn’t becoming the most prominent abject lesson in the ills of blogging as your primary focus. I don’t know what he was like back in the day but his blog is now structurally defined by some terrible habits.

    1. Click-bait.

    2. Not spending even 5 minutes researching a subject before blogging on it.

    3. Spending even less time thinking about subjects before blogging on them.

    4. A notable aversion to/disgust with interacting with those disagreeing with him.

    Rod seems to be both addicted to blogging and worn down by it. I mean, he’s even flirted with “race-realism” a few times, which is damn sad for a guy whose entire intellectual career has been built on not being that kind of conservative.

    Mike

  21. PAUL HOOSON says:

    The purpose of the First Amendment is to protect all sorts of unpopular speech from government controls or punitive actions. Short of advocating violence, all unpopular speech deserves First Amendment protections. – Justice Hugo Black once wrote that government should be restrained from doing things to the citizens because of some unpopular speech, because they are within their free speech rights.

  22. Just 'nutha' ig'rant cracker says:

    @Tyrell: I really hope that you and your pastor never get to live in a country where real, genuine religious persecution is the order of the day. And go back and read Romans chapter 8 and cross reference to Philippians ch 1 and figure out what you’re supposed to do even if it happens.

  23. Eric Florack says:

    I asked a fraind who lives down that way for some background.
    He responded….

    =-==-=-=-=-In Texas the counties are very large, the cities are relatively small. For instance here in Houston, the city contains less than 50% of the total voters in Harris County, which is conservative.

    City politics is largely liberal. Our current lesbian mayor, Anise Parker, has been a fixture around city hall for almost twenty years. When she ran for mayor the first time, her opponent was a rather sleazy AA lawyer. Once she was elected, the power of incumbency kept her in office.

    She is in her last term, thanks to term limits. She got the city council to pass an ordinance that forbids the city from discriminating against LGBT types. There was the expected furor.

    A petition was filed to have the matter put on the ballot. The city clerk certified the petition. But the city attorney, who was her appointee, stepped in and challenged it. The inevitable lawsuit is pending. The subpoeanas were issued as part of the lawsuit.

    All hell is breaking loose at the moment.

    Check out Brietbart/Texas later today for more current data.

  24. superdestroyer says:

    @jadedhavwn:

    You would have a stronger point about the caveats about religion and politics if it was not for the Democrats tolerance of black churches being actively involved in politics. It seems that Democrats only care about keeping churches out of politics when it helps Republicans.

  25. Ken says:

    @Pinky: This has got to be a hoax or an internet-driven distortion.

    My inclination is to agree, though I recognize that this is driven as much by my own personal bias and wishful thinking on one side as it is by a long and sordid history of right-wingers distorting, misunderstanding, and outright lying about the words, actions, and impact of those acting upon the nefarious Gay Agenda (bum bum bummmmmm) on the other. For the moment, it seems reasonable to deal with the “facts” as presented

    Doug: In it’s current form, however, it seems pretty clear that the City’s subpoena request, which some are alleging to be an attempt at political intimidation, is far too broad and ought not to be allowed to proceed forward.

    First, thanks for a thoughtful analysis. I usually only chime in when I find a point of disagreement (or a good joke), but this article was well done, interesting, and (if the facts are as presented) reasonable

    I agree with your point in the quoted bit, but I disagree with those crying intimidation. It seems much more like a fishing expedition looking for some good dirt they can use. Still pretty damned unsavory, though.

  26. Ken says:

    @Tyrell: It is already happening. Soon pastors, church leaders, Sunday school teachers, youth leaders, and even members will be arrested and attempts will be made to silence them

    Careful – if you clutch those pearls too tightly, you’ll break the necklace.

    Also, do you realize how abjectly stupid this ridiculously over the top response makes you sound?

  27. Ken says:

    @superdestroyer: everyone should remember to answer bet on the homosexuals getting what they want no matter what they have promised in the past.

    Exactly! And if good people like you don’t act now, this homosexual steamroller will literally crush all decent men, women, and children who get in its way … and our nation will pay a terrible price

  28. C. Clavin says:

    @Tyrell:

    We are on the road to the destruction of the US Constitution!!!

    Get a grip, man.

  29. superdestroyer says:

    @Ken:

    I would rephrase that that any christian demonination that does not openly support homosexual marriage and all issues that homosexuals care about should probably put on the endangered list. There tax exempt status will not last for much longer. there members will have no chance of getting good jobs or having their children admitted to good schools or universities, and the public life of the members will be put under a microscope. Eventually the members will get the message and change or those religions will have so few members as to be irrelevant.

  30. C. Clavin says:

    @Eric Florack:

    Our current lesbian mayor, Anise Parker, has been a fixture around city hall for almost twenty years.

    Why was it necessary to identify her as a lesbian?

    She got the city council to pass an ordinance that forbids the city from discriminating against LGBT types. There was the expected furor.

    Why yes…how dare anyone try to prevent discrimination?
    Are you and your friend homophones, or just still in the closet?
    In either case you are a waste of oxygen.

  31. C. Clavin says:

    @superdestroyer:

    any christian demonination that does not openly support homosexual marriage and all issues that homosexuals care about should probably put on the endangered list.

    I would argue that anyone who does not support marriage equality for all and does not care about the issues that affect all people…IS NOT VERY F’ING CHRISTIAN TO BEGIN WITH.
    The fact is that people like you, and Republicans in general, don’t understand Christianity anymore than you understand Conservatism.

  32. Modulo Myself says:

    Actual laws that restrict free speech are passed, and people like Doug and Eugene Volokh are never to be found. Here’s Senate Bill 2473, from the enlightened state of Mississippi:

    Senate Bill 2473 would make it illegal to coerce a business into staying neutral in a union drive or allowing workers to choose union representation by signing cards instead of by secret ballot. It’s not clear what would constitute coercion, but businesses could sue anyone they believed engaged in it.

    You don’t get people asking what exactly is coercive, according to this law, or how this affects the 1st amendment rights of workers. That would be crazy, and who f—ing cares, anyway? That black churches might have their 1st amendment rights restricted is of course no concern, because they aren’t arguing for their right to discriminate.

    These questions are saved for asking about the rights of misogynists to take unasked-for photos of women, or of the freedom of a religious group to discriminate against gay people, or for a racist name to be regulated. The important things, to show you care about rights…

  33. Crusty Dem says:

    @Eric Florack:

    Check out Brietbart/Texas later today for more current data.

    Uhhhh, no. Data is only as good as it’s source, so this would actually have negative value.

    @Doug Mataconis:

    Obviously, the subpoena looks a little sloppy, but this turgid over-response is comical. I suspect the only reason to include “sermons” is to threaten their tax-exempt status (not an unreasonable threat, given their actions) and should not have happened in this case, but everything else looks reasonable, if slightly aggressive. Were you the city attorney, wouldn’t you subpoena most of these documents?

  34. beth says:

    @superdestroyer: You’re probably right but for all the wrong reasons. Imagine a church today that openly preached for segregation, against interracial marriage and likened blacks to animals or child molesters. That church would probably lose most members and eventually cease to exist. As it should.

  35. Eric Florack says:

    @superdestroyer: Exactly so.

  36. superdestroyer says:

    @C. Clavin:

    I always find it odd that people who want to call Christianity just a superstition are the ones who always want to tell Christians how to act like Christians. One cannot be hostile to christianity and a voice of what Christian should do at the same time.

  37. C. Clavin says:

    @superdestroyer:

    One cannot be hostile to christianity and a voice of what Christian should do at the same time.

    The two are by no means mutually exclusive. In fact…to be an effective critic one must be knowledgeable of the subject being criticized.
    It’s a pretty simple matter to recognize that you are not adhering to the tenets of Christianity you claim to adhere to…while also not necessarily agreeing with those very same tenets.

  38. C. Clavin says:

    @superdestroyer:
    Also…the belief that people should all be treated with equal respect and dignity is not unique to Christianity.
    Superstitions about imaculate conception and a guy rising from the dead and snakes and apples and 40 days of rain are. And oh yeah…raping young boys…well at least with the Catholic Church.

  39. Barry says:

    @Scott: “Oh, nonsense. This is just lawyers being lawyers. The political dimension of this probably didn’t occur to them.”

    Bullsh*t. This is so outrageous (and I’ll be it’s also legally outrageous) that a lawyer who recommended this should be fired immediately, sued for malpractice, and face a bar hearing.

  40. Barry says:

    @JR Buckley: “I really don’t understand Volokh’s cited reference to RFRA. How can subpoenaing a copy of a sermon that was delivered in public (meaning anyone who walked into church that day could have heard it first hand from the pastor’s own mouth) conflict/interfere with free exercise of religion?”

    To start with, please read the description of the subpoena.

  41. pylon says:

    Lawyers often seek more disclosure than that to which they are entitled, on the chance they may discover something. Same here.

  42. Barry says:

    @Scott: “Oh, nonsense. This is just lawyers being lawyers. The political dimension of this probably didn’t occur to them.”

    Analogy – an armed security guard gets a machinegun, and when there is a threat of some sort, sprays out a full belt all over the place.

    That’s not just ‘guards being guards’.

  43. grumpy realist says:

    @Barry: Dearie, it’s easy to see that you don’t have much experience of law, or litigation. Asking for outrageous stuff and huge amounts of data is par for the course. I remember a case where the plaintiffs were requesting from a Fortune 100 company any email they had sent out internally covering company strategy. For the last five years.

    (I notice that it’s the people who have the most experience of litigation what are the most “eh, so what?” about this. It’s those innocent Americans who have never seen present day litigation practice who are all bent out of shape. Get it through your heads: the world does not work like an effing Perry Mason movie.)

  44. Eric Florack says:

    @Crusty Dem: That would only be a negative if you like nothing but the leftist cheerleading squad.

    As to the idea that lawyers always ask for more than they are entitled to, why would that be?
    Control, perhaps?

    Gee, I seem to recall something about this in the constitution.

  45. Eric Florack says:

    @C. Clavin: Oh, please.
    You do understand that there is an agenda at work, here?
    That all of the points indicated aree pieces of the puzzle?

    Thatbat the very least, what she and her minions are attempting is nothing less than silencing the opposition by means of an unconstitutional act?

    No, I doubt you do.

  46. pylon says:

    @Eric Florack: Even an overbroad subpoena is just asking for transcripts of what was said. In a public church. Which could be repeated by anyone in attendance – just not as accurately. Hardly an unconsitutional act.

  47. Johnny says:

    Reading these comments is like watching an episode of Waters World , many of them show the ignorance of our society when it comes to the constitution and our rights and liberties ! The IRS and Feds could not shut us up so they moved down to the lower ranks ! I remember when the dyke was put into command …I always knew it would not be good !