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."