After Massive Outrage, Houston Pulls Plug on Pastor Subpoenas

The City of Houston and Mayor
Annise Parker caused a holy ruckus with an overly expansive
subpoena against local religious leaders. The leaders did not like
Houston’s newly passed anti-discrimination ordinance, which covers
gay and transgender people. They gathered signatures to force the
new law onto the ballot for a vote. But the city tossed out many of
the signatures as invalid, preventing the vote, and proponents sued
them.

As part of the fight, the city issued subpoenas to get
information to defend its decision. This is not unusual. What drew
attention, though, were the
remarkably broad demands made by the subpoena against people
who weren’t even parties to the lawsuit. It asked for “all
speeches, presentations, or sermons related to [the 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.” That appeared to be far more than a
request for information relevant to whether the signatures gathered
were valid. Naturally, many saw this as a huge intrusion into the
rights of folks to freely practice religion.

Originally the city defended the subpoena and Parker complained
on Twitter that the media were getting the facts wrong. Then the

city admitted that maybe the subpoena was a bit too broad and
that they would narrow it down. Now they’re
withdrawing the controversial subpoenas entirely. In a
statement, Parker explains that she met with several pastors who
apparently convinced her that she was wrong without bruising her
ego:

“These pastors came to me for civil discussions about the
issues,” said Parker. They came without political agendas, without
hate in their hearts and without any desire to debate the merits of
the HERO. They simply wanted to express their passionate and very
sincere concerns about the subpoenas. The second meeting group
wasn’t from Houston, but they took the Houston approach of civil
discourse in presenting their case. We gained an understanding of
each other’s positions.”

Thousands of the signatures submitted with the HERO petition
failed to meet one or more of the requirements mandated by the City
Charter and had to be disregarded. As a result, the petition was
not placed on the ballot for voter consideration. HERO opponents
have filed suit against the city in an effort to reverse this
decision and force the issue to a vote.

Mayor Parker reiterated that this has always been about proving
that the petition process used by the five pastors who identified
themselves as the organizers of the effort did not meet the
requirements of the City Charter. “That got lost in the national
debate over the subpoenas,” said Parker. “Today’s move refocuses
the discussion and allows us to move forward.”

The reason the debate got lost was entirely because of what was
demanded of the subpoenas themselves. While it’s good Houston is
backing off in this situation, what was never debated at all is
that the abusive nature of these subpoenas could have been brought
to bear against any group seeking to influence city ordinances,
religious or secular. One demand from the subpoena was for any
information used to “ensure the truthfulness and accuracy” of
claims by opponents of the ordinance that the law would require
Houston businesses to let men use the women’s restrooms,
threatening women’s safety. This is typical transgender bathroom
panic nonsense, and that’s one of the arguments opponents were
using to get people to sign. The subpoena is essentially demanding
the pastors provide proof that their opinion of the potential
consequences of this law is true, something that’s arguably
impossible. Certainly Houston’s anti-discrimination ordinance
wouldn’t be the first law passed with
unpredicted (or at least deliberately hidden) consequences.

Set aside the religious culture war entirely. The city’s move
suggested an intent to try to get a court to strike down the
referendum push as illegitimate so that they wouldn’t have to
defend the law to a public that might not actually support Parker’s
pet project. Oppressive subpoenas like this happen all the time,
which is probably why Houston didn’t even realize it was poking at
a hornet’s nest. Cities across the country fight back like this
against citizens attempting to exert their right to influence
municipal policy. Cities and counties make every effort to make it
difficult (if not impossible) for citizens to push forward
referendums or initiatives that run counter to what civic leaders
want. If the targets hadn’t been pastors, would we even had known
about the subpoenas? As Cato’s Walter Olson briefly notes at his

Overlawyered blog this morning in response to the withdrawal,
“One instance of abusive litigation discovery down, 437,816 to
go.”