Houston Subpoenas of Anti-Gay Pastors Went Too Far, but There May Still Be Reason to Investigate Their Churches October 16, 2014

Houston Subpoenas of Anti-Gay Pastors Went Too Far, but There May Still Be Reason to Investigate Their Churches

Earlier this month, about 1,800 evangelical Christian pastors across the country participated in “Pulpit Freedom Sunday,” where they defied the law by endorsing political candidates from the pulpits of their tax-exempt churches. The law basically says that non-profit groups, including churches, don’t have to pay taxes, but in exchange, non-profit leaders (including pastors) can’t tell members how to vote. They can, however, discuss policy issues without the threat of punishment.

The IRS ignored these candidate-endorsing pastors for years due to (what they say were) bureaucratic reasons, but they recently settled a lawsuit brought about by the Freedom From Religion Foundation and promised they would prosecute pastors who violated the law.

Which brings us to what’s happening in Houston, Texas right now.

Houston Mayor Annise Parker (via Wikipedia)

The city has what’s called the Houston Equal Rights Ordinance (HERO). Recently, an amendment was added onto it that offers protection so that transgender individuals could use a bathroom at a public facility that matches their gender identity.

Conservatives were unhappy with that for the usual reasons; some believe that the law would let men walk into a women’s bathroom (or vice versa) on a whim, some are opposed to LGBT rights in general, Houston’s mayor is a lesbian and some people are still angry about that, etc. They wanted a voter referendum on the ordinance change, so they began to collect the signatures necessary to get the issue on the ballot. According to city officials, many of those signatures were invalid, putting a stop to the challenge.

That’s when conservative groups filed a lawsuit against the city.

In the process of the legal battle this week, we learned that attorneys for the city subpoenaed five local conservative pastors to find out if they had said anything to their congregations that might have crossed the line:

City attorneys issued subpoenas last month during the case’s discovery phase, seeking, among other communications, “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”

That’s… very weird.

While it might be relevant to know if the pastors told churchgoers to vote against Mayor Parker, it certainly wouldn’t be illegal to talk about HERO. And why would it matter what they say about homosexuality and gender identity? Pastors have every right to call homosexuality a sin. They can say all sorts of ignorant, bigoted things. But that would have nothing to do with the issue at hand.

In other words, what’s supposed to be an attempt to discover actual illegal activity has been spun by conservative groups into a story about how government officials are trying to silence pastors from speaking out against homosexuality. Which is complete bullshit, but it’s not like the facts have ever stopped the Right from pretending to be martyrs.

The conservative legal group Alliance Defending Freedom is seeking to halt the subpoenas and right-wingers are claiming this is all part of some big conspiracy:

ADF attorney [Erik] Stanley suspects the mayor wants to publicly shame the ministers. He said he anticipates they will hold up their sermons for public scrutiny. In other words — the city is rummaging for evidence to “out” the pastors as anti-gay bigots.

(Right… as if we needed more evidence for that.)

They’re also saying this is part of a plan to silence their voices, which is completely over the top. As if requesting copies of sermons would put a stop to Christian television shows, online ministries, multiple sermons a week, and all the money that follows:

Russell Moore, the president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission told me the city needs to mind its own business.

“The government has absolutely no reason to bully congregations who are speaking out about what they believe,” he said. “It’s none of the government’s business.”

City officials say none of that is the case. There are perfectly good reasons why these subpoenas are valid:

City Attorney David Feldman argues the subpoenas are justified because the churches are where opponents of the ordinance met.

“We’re certainly entitled to enquire about the communications that took place in the churches regarding the ordinance and the petitions because that’s where they chose to do it,” Feldman tells KTRH News.

“Its relevant to know what representations and instructions were given regarding these petitions,” he says.

That may be true, though you have to wonder how strategic it was to go after the churches like this with subpoenas that asked for so much irrelevant information. Especially since many mega-church pastors put their sermons online, anyway…

Even some church/state separation advocates see this as unnecessary overreach:

Rob Boston, Director of Communications for Americans United for Separation of Church and State, said in a statement, “Government authorities have the right to subpoena pastors and even ask for sermons if there is a reasonable suspicion of wrong-doing. For example, if a pastor delivered a sermon and urged his flock to engage in illegal activities, law enforcement officials could investigate it.” But, Boston went on, “That doesn’t appear to be the case here. The targeted pastors are not even parties to the lawsuit, and the scope of the subpoenas is strikingly broad. This has the look of a fishing expedition. I’m not surprised that the pastors are resisting the subpoenas, and, assuming there is not more to this story than has been reported, I think they might be successful.”

The Interfaith Alliance’s Rev. Dr. C. Welton Gaddy also added in a letter to the mayor and the city attorney:

… I will work as hard to defend the freedom of speech from the pulpit for those with whom I disagree, as I will to defend the rights of the LGBT community. As long as a sermon is not inciting violence, the government has no business getting involved in the content of ministers’ sermons.

Religious communities, of course, do not have unfettered rights to participate in the political process. The IRS rightly restricts the ability of houses of worship to endorse candidates and political parties, to direct money to campaigns, and to spend above a certain percentage of their time on political activities. However, it should be clearly understood that the IRS does allow houses of worship to take positions on ballot initiatives and to advocate for those positions. These are common sense measures that strengthen the boundaries between religion and government and protect the independence of each.

That really highlights the problems here: Why go after these churches? Why go after what they might have said about these policies? Why ask them what they said about homosexuality and gender identity?

The city’s case would be much more compelling if they had reason to believe these pastors were trying to do some political organizing from the pulpit, but there’s just no evidence of that.

Even Mayor Annise Parker now says she had no idea the subpoenas were so broad. A city spokesperson, Janice Evans, told the Wall Street Journal:

Mayor Parker agrees with those who are concerned about the city legal department’s subpoenas for pastor’s sermons. The subpoenas were issued by pro bono attorneys helping the city prepare for the trial regarding the petition to repeal the new Houston Equal Rights Ordinance (HERO) in January. Neither the mayor nor City Attorney David Feldman were aware the subpoenas had been issued until yesterday. Both agree the original documents were overly broad. The city will move to narrow the scope during an upcoming court hearing. Feldman says the focus should be only on communications related to the HERO petition process.

That’s more like it. But it may be too late. As Sarah Posner of Religion Dispatches writes,

Even if the city does go to court tomorrow and narrow [the] subpoenas’ scope, the damage has already been done, as Scott’s tweet suggests: for conservatives, the cause celebre is already in motion, and is unlikely to be dialed back.

It’s very easy to jump on the ADF bandwagon at this point and claim this is all an infringement of religious liberties, but it’s entirely possible some churches really did violate the law. If that’s the case, and there’s reason to believe they did, then attorneys should be able to subpoena their sermons to discover that activity. I worry that the negative publicity may prevent an actual investigation from taking place.


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