The Annals of Bad Ideas: Houston Responds to Religious Activism with Subpoenas for Sermon Contents

In May, Houston’s City Council
passed an ordinance that extended
anti-discrimination laws to gay and transgender residents. This
did not sit well with several local folks, particularly those of
the religious persuasion. They organized and
gathered signatures to try to force the ordinance to a public
vote, as is their right under Houston law. The city’s secretary
looked over the signatures and declared them sufficient to qualify
for a vote. But then City Attorney David Feldman looked it over and
disqualified thousands of signatures. The vote would no longer
happen. Opponents of the ordinance are appealing the
disqualification and there’s all sorts of squabbling and
nitpicking, as is common when citizens want to vote on something
that a government would prefer they did not.

The fight has taken an unusual turn now, as the City of Houston
is attempting to subpoena the
contents of sermons and other communications by local Christian
conservative leaders who have spoken in opposition to the law. From
the Houston Chronicle:

City attorneys issued subpoenas last month as part of the case’s
discovery phase, seeking, among other communications, “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.”

The subpoenas were issued to pastors and religious leaders who
have been vocal in opposing the ordinance: Dave Welch, Hernan
Castano, Magda Hermida, Khanh Huynh and Steve Riggle. The Alliance
Defending Freedom, a Christian legal organization known for its
role in defending same-sex marriage bans, filed a motion Monday on
behalf of the pastors seeking to quash the subpoenas, and in a
press announcement called it a “witch hunt.”

Feldman is defending the subpoenas by pointing out a training
video by a member of a local pastor council explaining the rules
for collecting signatures for a ballot initiative. This illustrates
that these folks were politically involved and therefore the speech
was not protected, according to Feldman.

But such a broad demand for communications appears a bit absurd.
All sermons related to homosexuality from conservative preachers?
Much of that could have nothing to do with any sort of activism
against the ordinance. And did nobody think about how it was going
to look to demand any communications by a religious leader that
mentioned the city’s openly gay mayor? One legal expert was
skeptical:

The city’s lawyers will face a high bar for proving the
information in the sermons is essential to their case, said Charles
Rhodes, a South Texas College of Law professor. The pastors are not
named parties in the suit, and the “Church Autonomy Doctrine”
offers fairly broad protections for internal church deliberations,
he said.

Calling it an “unusual but not unprecedented” subpoena request,
Rhodes said the city would stand a better chance of getting the
sermons if it were a criminal case in which the message or
directive in the sermons prompted a specific criminal action. …

“This is unusual to see it come up in a pure political
controversy,” Rhodes said. “The city is going to have to prove
there is something very particular in the sermons that does not
come up anywhere else.”

The Alliance Defending Freedom is trying to quash the
subpoenas. What strikes me about this foolishness of this decision
is that it reinforces the fears of the religious that they will be
targeted and victimized in a society that is more tolerant of gays
and the transgender. The big argument the opponents of the
ordinance have been using is actual fearmongering that sexual
predators will dress up like women to get them in the bathrooms and
we’ll all be helpless to stop them because of the law. It is a
silly, stupid argument that has no basis in anything real (though,
having said that: Private businesses should be able to set whatever
restroom policies they want).

But now that the city and its mayor are actually, literally
targeting them using the law as a weapon, they are getting all
sorts of attention. It doesn’t actually matter whether Feldman is
right and these guys pushed beyond proselytizing to political
activism that is inappropriate for religious nonprofits. It makes
the city look like a bully that doesn’t actually have any faith
that the ordinance it passed is supported by its own electorate.