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


Should they just tell the city to go to hell?
Credit: Ianbarnard |

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.  

UPDATE: Here's a pdf of the subpoena request, which also asks for documents that demonstrate the truth of their claims of bathroom attack risks and also their résumés.