The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The letter, available here, reads:
Your office has demanded that several Houston pastors hand over to the city government many of their private papers, including their sermons. Whether you intend it to be so or not, your action is a direct assault on the religious liberty guaranteed by the First Amendment. The people of Houston and their religious leaders must be absolutely secure in the knowledge that their religious affairs are beyond the reach of the government. Nothing short of an immediate reversal by your office will provide that security. I call on you to withdraw the subpoenas without further delay.
I recognize that the subpoenas arise from litigation related to a petition to repeal an ordinance adopted by the city council. But the litigation discovery process is not a license for government officials to inquire into religious affairs. Nor is your office's desire to vigorously support the ordinance any excuse for these subpoenas. No matter what public policy is at stake, government officials must exercise the utmost care when our work touches on religious matters. If we err, it must be on the side of preserving the autonomy of religious institutions and the liberty of religious believers. Your aggressive and invasive subpoenas show no regard for the very serious First Amendment considerations at stake.
A statement released by the Mayor's Office claims that the subpoenas were prepared by outside lawyers and that neither you nor Mayor Parker were aware of them before they were issued. Nevertheless, these lawyers acted in the City's name, and you are responsible for their actions. You should immediately instruct your lawyers to withdraw the City's subpoenas. Religious institutions and their congregants should never have to worry that a government they disagree with will attempt to interfere in their religious affairs. Instead of safeguarding that trust, you appear to have given some of the most powerful law firms in Houston free rein to harass and intimidate pastors who oppose City policy. In good faith, I hope you merely failed to anticipate how inappropriately aggressive your lawyers would be. Many, however, believe your actions reflect the city government's hostility to religious beliefs that do not align with city policies.
I urge you to demonstrate the City's commitment to religious liberty and to true diversity of belief by unilaterally withdrawing these subpoenas immediately. Your stated intention to wait for further court proceedings falls woefully short of the urgent action needed to reassure the people of Houston that their government respects their freedom of religion and does not punish those who oppose city policies on religious grounds.
As I wrote Wednesday, I think the subpoenas were indeed massively overbroad—because much of the subpoenaed material was highly unlikely to be relevant—and thus improper. But I don't think that sermons are categorically "beyond the reach of the government" when subpoenaed in litigation or investigations; to the extent the sermons are substantially relevant, I think they could indeed be subpoenaed (for the reasons I gave in my post).
For instance, as I argued, if there was reason to think that a sermon contained slanderous material, or admission of employment discrimination or evidence of other crimes or torts or statutory violations, I think it could indeed be subpoenaed. The legal constraint isn't on subpoenaing of sermons and other religious presentations as such, but rather on subpoenaing of such material when it's irrelevant (or perhaps at most marginally relevant).
The attorney general's letter, which cites no legal authority, doesn't persuade me to the contrary, and I think it's unlikely to persuade the city attorney (at least as a legal matter; I can't speak about what political effect the letter might or might not have).
Thanks to Jim Bell for the pointer.