Houston: It’s Not a Problem

(system) #1

Last week the news came out that the city of Houston subpoenaed the sermons of five pastors related to a legal fight over a petition. In its first iteration, the subpoena requested, ““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 reaction from the people in the church-state field was surprisingly unanimous. Both the Alliance Defending Freedom and Americans United for the Separation of Church and State publicly stated that filing such a broad subpoena was an overreach that bordered on violating the pastors’ ability to freely express and exercise their beliefs. Interestingly enough, Houston’s mayor, who is at the center of this firestorm, agreed. In a statement Mayor Parker said that she agreed with the criticism of the overly broad subpoenas and that the city would seek to narrow the scope of the subpoenas. To this end, the city amended their discovery requests and are now seeking, ““[a]ll speeches or presentations related to [the Houston Equal Rights Ordinance] or the Petition prepared by, delivered by, revised by, or approved by [the pastors] or in [the pastors’] possession.” Despite this, some have still been critical of any attempt by the City to collect any documents from these pastors, citing concerns about the separation of church and state and a potential chilling effect to pastoral speech in the future because of these subpoenas. However, I’m not sure that there was a significant church-state issue even with the subpoenas in their original form, and what little concern was justified has been alleviated with the narrowing of the request by the city. There are several reasons why Houston does not have a problem now, and possibly never did –

1. Facts make the case – In the reporting of this case, there seems to have been a lot of sleight of hand by those who want to make the argument for an oppressive government seeking to harass churches. Here is a brief sketch of the facts. Houston passed an antidiscrimination ordinance called HERO (Houston Equal Rights Ordinance) that provided several protections for the LGBT community in that city. Opponents of the measure, including several Christian groups, hoping to repeal the ordinance, collected signatures on a petition to have referendum on the ordinance included on the November ballot. The subpoenaed pastors aided in collecting signatures for the petition. The city invalidated the petition based on concerns about the rules regarding petitions in Houston not being properly followed. Some of the Christian groups (but not the pastors or the churches they lead) sued the city. While many media outlets have reported that the pastors are not party to the case, which is accurate, they are not fully reporting the role the pastors played in the petition drive. The pastors being subpoenaed are certainly related to the organizations that sued and worked in conjunction with those organizations. That’s important because if they were working with those organizations than what they said to the public about the petitions and the rules regarding petitions is relevant to the case.

2. This is what lawyers do in discovery – Some of the confusion about what is happening here is due to the fact that many of the people doing this analysis don’t understand what lawyers do, and those that do are making a mountain out of a molehill (and I would suggest that they probably know exactly what they’re doing). During the discovery process, lawyers draft discovery requests (for the parties in the case) and subpoenas (for those who are not parties) seeking relevant information (which is generally given very wide latitude by courts). Because lawyers want to get as much information from related parties as possible in their search for anything that can help their case, they tend to draft requests that will give them as much information as they can obtain. If they narrow their requests themselves, they run the risk of having the other side refuse to turn over something that actual is relevant to their case. These requests are regularly objected to as either vague, overbroad, or irrelevant to the case, and courts often step in to narrow these requests. There really is nothing out of the ordinary going on here. I can confidently say to you that as you read this (no matter what time of day it is) some lawyer in some part of the world is drafting one of these all encompassing discovery requests. With or without all this media attention, the same thing would happen – the parties would make all encompassing discovery requests, both parties (and the outside parties in terms of subpoenas) would object, and then all the parties would show up in court and let the judge decide. That said, I agree with all the commentators who have noted that the original requests are vague, overbroad, and ask for irrelevant information. If the city’s pro bono lawyers were savvier, they would have realized that in a case involving churches and pastors, it is probably better to narrowly tailor your discovery request. But I cannot blame them for sending the original requests - this is just what lawyers do.

3. A subpoena isn’t what you think it is – I have to admit I am having a hard time understanding the chilling effect argument. As far as I can tell, the argument is that if pastors know that their sermons and other public speeches can be subpoenaed, they will be more cautious about what they say in public. I think this type of argument greatly misunderstands what a subpoena is and what it does. These pastors are not being subpoenaed randomly. They are being subpoenaed because what they said is relevant to a legal controversy to which they are intimately connected, despite the fact that they are not named parties. The pastors subpoenaed were working with organizations on a particular issue and those organizations then sued the government. This subpoena is not going to lead to the indiscriminate monitoring of sermons by the government. Now as a pastor you may have to turn over your speeches if you work with an organization that sues the government and then the government finds out that you worked with those organizations about the very thing that the government is being sued over. Furthermore, while a subpoena may demand that you turn over certain information, the subpoena only has power over the particular case to which it is connected. As I said earlier, facts make cases. Therefore, while these pastors may have to turn over documents in one case, they may not have to do so in a case with different facts. The outcome of this discovery dispute is not necessarily binding in future cases.

4. There is no such thing as sermon privilege – With some of the analysis going on here, you would think that there is some sort of sermon privilege that is similar to priest –penitent, attorney-client, or marital privilege. The pulpit does not protect your speech from being known by the government. If these pastors advocated lawbreaking of some sort in their speeches, than those speeches can be used as evidence. More to the point, if the pastors in a speech advocated a tactic that circumvented the rules of gathering signatures for a petition, than the city deserves to know about it. Furthermore, I would think that these pastors would relish the chance to have their speeches reach audiences who would probably never volunteer to come hear them.

Finally, the separation of church and state (or lack thereof) is a two–way street. It has been interesting to watch the same organizations that argue against the separation of church and state when it comes to school prayer or same-sex marriage or Ten Commandments monuments now take up the mantle in this particular case. Churches can’t have it both ways. If they seek to become involved in the quagmire of legislative politics, they open themselves up to things like lawsuits and subpoenas. You can’t step in the ring and then demand that no one take swings at you. The pastors involved put themselves in this position. Moreover, when we look at the fact that lawyers make these types of requests all the time, when we realize that the probability of this case having lasting ramifications is actually quite low, and finally when we look at the fact that the city agreed with the criticism and adjusted their behavior accordingly, I can’t see how we have a real church-state problem in Houston.

This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/6357

(Thomas J Zwemer) #2

The best argument is that the separation of church and state is a two way street.Never the less, The finding was excessively broad even as revised. If a pastor refuses, what action is the city going to take that doesn’t get more mud in its eye? Second, any peeper would claim the ordinance as protection. The contest is between dumb and dumber. Tom Z

(Allen Shepherd) #3

I have a simple question to ask that I think shows why there is INDEED a problem in Houston;

When was the last time sermons were subpoenaed for any issue, and specifically for a gay rights/religious controversy?

I have never heard of this being done, so unless it is some sort of routine which Hines seems to suggest, there is a real problem. And the a chilling effect.

(Kevin Paulson) #4

Allen, unless there are facts in this case that Jason has left out, his explanation makes sense to me. The political involvement of these pastors and the alleged rulebreaking so far as the gathering of electoral petitions is concerned, do in fact place a different construction on the circumstances which brought about these subpoenas.

This is definitely not a case of civil authorities demanding the sermons delivered by a pastor in a strictly evangelistic or theological context—as would be the case, for example, were local Catholic priests to demand civil intervention on account of an Adventist pastor preaching the mark of the beast. The fact that these pastors were involved in a secular political initiative to which legal challenge was made, places a completely different construction on the incident.

The good news is that even the appearance of violating the line between church and state was sufficient to cause the mayor to concur that this was indeed an overreach, and for such groups as Americans United for Separation of Church and State and others to voice opposition to the subpoenas. Jason is quite correct in saying that the separation of church and state is a two-way street, as I have often stated in recent articles published by Liberty. The government has no business telling preachers what to preach, but neither do preachers—in our non-theocratic state—have the right to impose on society through civil means particular theological or consensual moral standards.

Might I ask Jason, or perhaps others, to do us another favor? Could he perhaps investigate the allegations presently coming out of Idaho, in which a church and its pastor are allegedly being forced to perform gay marriages in a privately-owned wedding chapel? I am wondering if perhaps more information could clarify that situation as well.

(le vieux) #5

This is certainly a more balanced report that what was reported by some sources, which were presenting the local government officials as something out of 1984. Some of those same alarmists were quite critical of some of the incendiary sermons given by Jeremiah Wright. I wonder if they would have been complaining if those sermons were subpoenaed.

(SurprisedByGrace) #6

What relevance do the pastors speeches and sermons have in a dispute over how signatures were validated or invalidated? This is why this is dangerous. The lawsuit is seeking to get the city to share what process they used to validate or invalidate the signatures on the petition and the city starts subpoenas on pastors free speech? Give me a break. There IS a problem in Houston, much to Mr. Hines spin.

(Bill Cork) #8

As a pastor who has lived in Houston since 1998, I think Jason’s analysis is the best I have seen.

The sermons are relevant because this is where these political pastors were recruiting people for the petition drive, explaining to them what to do, and advertising their opposition to the ordinance.

As to the question of whether sermons have been subpoenaed before this, I can give personal testimony. My sermons were subpoenaed back in the early 1990s when I, as a former pastor of the Evangelical Lutheran Church in America, joined a lawsuit seeking with other pastors and former pastors seeking to withdraw our contributions to the ELCA Board of Pensions retirement fund. The lawyers of the ELCA engaged in the same form of discovery, wanting to find out everything that we had said or written about controversies in the ELCA. As Jason said, sermons are not “privileged communication.” They are public speech.

The group in question, the Houston Area Pastors Council, is a politically active group. They are certainly involved, even if the pastors are not all named. They threatened the lawsuit, and threatened a very aggressive discovery, even before the petitions were thrown out. Here’s is their statement:


If the city reports that there are inadequate qualified signatures to
meet the minimum of 17,269, we will immediately file a legal challenge
and mount an aggressive investigation into every signature and every
petition declared unqualified. We will scrutinize every action, depose
every person involved and leave no stone unturned to give what we are
confident is the majority of citizens in the city their day to have
their voice heard. We truly pray and hope this will not be necessary and
that we can just have an open debate and let the people vote this

Steven Hotze, MD, and Jared Woodfill, two of the plaintiffs, are well known names in conservative Republican circles. The Republican Party of Texas includes in its platform an explicit rejection of separation of church and state, calling it a “myth” (in harmony with the philosophy of onetime Republican Party of Texas vice-chairman, David Barton. This is the larger context of this lawsuit.

(Kevin Paulson) #9

Thanks for your comments, Bill. I am quite familiar with the writings and influence of David Barton. What he calls a “myth” is traceable to Christ Himself, who declared that His kingdom is not of this world (John 18:36) and forbade His followers to use force in His name (Matt. 26:52). Barton also declares that the presence of Sunday laws in America’s “good old days” past is indicative of our allegedly “Christian” heritage. I’m quite sure he would welcome such laws in our land today.

(Bill Cork) #10

@kevindpaulson - Regarding the Hitching Post chapel in Idaho, here’s a pretty detail that no news report mentioned until yesterday–a month ago, they registered as a religious corporation so that they would fall under the religious exemption. City told their lawyers if they did that, they would have no issues. ACLU says they are fine. So why is it a controversy? Because the “Alliance Defending Freedom” made it one. http://www.cdapress.com/news/local_news/article_0e5a7434-5bcb-11e4-9663-bb8183dcf334.html

(Kevin Paulson) #11

Thanks for your research on this, Bill. I suspected there was some hidden detail like this. I’ve gotten a new idea for a Liberty article on account of these incidents in Houston and Idaho. I am all for the freedom of Bible-believing churches to bless or not bless relationships based on religious belief. But the line between church and state has to be kept inviolate.


Thank you for this article Jason. It has helped me to understand the situation in more clearly.

(Ron Corson) #13

This is a tragic article…but then hey the government going after its citizens is certainly profitable for attorneys. In fact it matters not one wit to the case if the sermons told people to sign the petitions or if the sermons said gays are destructive horrible people. It has nothing to do with the government not abiding by the Registrar’s account of eligible petition signatures.

So yes the government overreach is a problem…unless you are a Progressive then the government is only there to help you. So really how is a mayor fighting to keep something off the ballot not a problem. Oh dear the people could vote and have their say. Must not have that!

(Ron Corson) #14

Most don’t mention it because it is not all that relevant. The city first said earlier in the week (which would still have been nearly a month after their corporation change) that:

"From Boise State Public Radio:
"Initially, the city said its anti-discrimination law did apply to the Hitching Post, since it is a commercial business. Earlier this week, Coeur d’Alene city attorney Mike Gridley sent a letter to the Knapps’ attorneys at the Alliance Defending Freedom saying the Hitching Post would have to become a not-for-profit to be exempt.

But Gridley said after further review, he determined the ordinance doesn’t specify non-profit or for-profit.

“After we’ve looked at this some more, we have come to the conclusion they would be exempt from our ordinance because they are a religious corporation,” Gridley explained.

Court filings show the Hitching Post reorganized earlier this month as a “religious corporation.” In the paperwork, the owners describe their deeply held beliefs that marriage should be between one man and one woman." http://reason.com/blog/2014/10/24/city-tells-idaho-wedding-chapel-it-can-t

So your statement of who made it a controversy is completely wrong. It was the city. The article from Reason also points out in its summary the silly nature of this when they say:

"…The only thing that should matter is that they didn’t want to marry a couple for whatever reason they declared.

Why? Because the idea that a wedding ceremony is a public accommodation is absolutely absurd. Is there a service that is any less of a public accommodation than an actual wedding ceremony? The whole idea of a public accommodation laws (and don’t read this as a general endorsement) is that the identity of the customer is irrelevant to the business transaction. A business operator’s opinions on race or religion should have no reason to come into play when selling somebody gum or a hamburger or a ticket to see a movie. But a wedding is literally hiring somebody to tell you that you and your partner are awesome and are going to be happy and to enjoy life. A wedding ceremony is literally speech. The actual marriage certification process with the state is something else entirely. Marriage is a right. A wedding ceremony is not."

(Allen Shepherd) #15

I believe that the Houston authorities have dropped the subpoenas for the sermons, thus ending the controversy. So, it there was no problem, why did they do that?

(P Kevin Wells) #16

If the government issues a subpoena for anything I have said then so be it. All of this handwringing betrays an egregious lack of confidence in the truthfulness and nobility of the cause. At some point we all need to have the courage of our convictions and bear whatever consequences may come from what we say.
The only objection I would have is if the government sought out private correspondence, between myself and one other person, and that objection would be predicated on the correspondence being of a private and or sensitive nature. For instance if I’m providing pastoral care. Otherwise my sermons are catalogued on the web free to anyone to critique and to hold me accountable for what I say.

(Interested Friend) #17

It looks to me like a spin; maybe David Read, an attorney could weigh in so we would have his view of the matter. He could make clear as to whether the above article is merely spin or of significant substance.

I have grave doubts about the legitimacy of any request for a Pastor’s sermon especially in the case where the chief executive is a gay.
In The Grip of Truth

(SurprisedByGrace) #18

Attorney’s are divided as to the seriousness of such subpoenas in a freedom of religion context.

(SurprisedByGrace) #19

I think the attorneys for the Hitching Post were trying to get out in front of this issue with the pending city ordinance that was going to protect sexual orientation (potentially affecting their business, anyway, because a religious for profit won’t be excluded). This is why there needs to be something that protects people of faith that are proprietors of business to not be made to participate in ceremonies that they can’t be part of due to their faith. So far these cases are revolving around public accommodation because of their business status. The photographers, bakers and florists that are facing these issues all did business with gay people. They just didn’t feel they could participate in a religious ceremony their faith would not allow them to do.

(Ron Corson) #20

Well fortunately the Mayor has withdrawn the subpoenas. But this leads to wonder what kind of thinking led to this article and the conclusion that it was no problem. But there does seem to me to be a disconnect between Progressive politics and religious liberty. I do hope the Progressive take some time to question their support for such things.