Why Didn't the City Think Subpoenaing a Bunch of Pastors Might Be a Big Deal?

It's hard to understand how or why the City of Houston didn't anticipate a clamorous backlash before it sent sweeping subpoenas to five local pastors critical of the city's anti-discrimination ordinance.

Maybe it's because Mayor Annise Parker and City Attorney David Feldman truly didn't understand the scope of those subpoenas, which asked for not just any internal records related to "equal rights, civil rights, homosexuality, or gender identity," but also the pastors' "speeches" and "sermons" that reference the city's fight to ban LGBT discrimination. The excuse floated Wednesday by Parker and Feldman that they aren't to blame, since an outside legal firm filed the broad request for documents, rings somewhat hollow, given Feldman's unwavering stance supporting the subpoenas earlier in the week and the less-than-apologetic tone coming out of Parker's office...

Beneath the outrage and the demagoguery, there's an underlying question: is there a legitimate legal basis for the city to subpoena this stuff? And, does the city's request (which Feldman says he'll amend to be a bit more narrow) violate the pastors' religious freedom protections?

"Well, the whole issue isn't as simple as the plaintiffs or the city want to make it," says Charles Rhodes, who teaches constitutional law at the South Texas College of Law. Sure, churches are afforded religious protections under the U.S. and state constitutions.

"But that doesn't necessarily mean that a sermon is entirely immune from ever being discovered in a judicial proceeding," says Rhodes. "What was very, very unusual about this case, however, was that the city subpoenaed all of this for a civil case where the sermons seem to be only tangentially related to the major issues in this lawsuit,"

First you have to pull back and understand what this lawsuit was about in the first place. It's not necessarily about the Houston Equal Rights Ordinance (HERO) or the protections it would (finally) afford LGBT folks in Houston. Sure, that's what led to the legal challenge. But the lawsuit itself is about a petition drive religious anti-HERO activists launched to try to force the ordinance to a ballot referendum - and, they had hoped, ultimately a repeal of the LGBT protections contained in HERO.

Shortly after council passed HERO in May, with a vote of 11-6, the local church-led coalition that formed under the banner of "No Unequal Rights" began gathering signatures for that referendum. They needed just over 17,000 to get HERO on the ballot, and in July, they submitted over 50,000 signatures for consideration. While the city secretary first ruled they'd secured enough signatures, City Attorney Feldman closely scrutinized the petitions and determined that many signatures hadn't been properly gathered -- Feldman claims entire pages of petitions were circulated by people who weren't registered voters. Anti-HERO activists were outraged when Feldman tossed thousands of signatures and the anti-HERO petition didn't meet its mark. No ballot referendum. No vote. Cue lawsuit.

So this is a lawsuit about the petition-gathering process, not about what the churches or their pastors think, negative or otherwise, about Mayor Annise Parker, equal rights, or bathroom accommodations for Houston's trans citizens.

Which is why the subpoenas, in the city's initial everything-but-the-kitchen-sink approach, were so jarring. Asking for anything related to HERO, here's just a portion of what records the subpoenas, first sent to the local pastors last month, demanded:

-- Anything related to Mayor Annise Parker, City Attorney David Feldman, HERO or any HERO drafts, and any copies or drafts for the petition to repeal the ordinance -- Anything related to "the topics of equal rights, civil rights, homosexuality, or gender identity" -- Any language related to restroom access or "any discussion about whether or how HERO does or does not impact restroom access" -- Communication with anyone at the religious right group Alliance Defending Freedom, which has criticized the ordinance -- AND "all speeches, presentation, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by your or in your possession."

It should come as no surprise that Conservative Christian groups and GOP politicians were outraged that the government subpoenaed pastors who aren't even a party to this lawsuit. Even HERO-supportive groups were uneasy with the city's legal strategy. Equality Texas Executive Director Chuck Smith said in a statement yesterday, "The Houston Equal Rights Ordinance does not infringe upon any faith community's rights. It does not dictate what any faith leader can preach. We call upon the City of Houston to continue to respect the freedom of people of faith, and to withdraw the request for subpoena."

Trying to justify the subpoenas, City Attorney Feldman earlier this week pointed to a video that popped up this summer with Pastor David Welch, a leader with the Houston Area Pastor Council that's been clamoring against the anti-discrimination ordinance. In the video, posted by Equality Texas shortly after the suit was filed, Welch, one of the pastors subpenaed by the city last month, trains people on how to properly collect signatures for the anti-HERO drive. In it, he speaks about the very rules that Feldman would eventually use to disqualify thousands of signatures.

In short, the video shows at least Welch was a critical part of the petition drive. That training video, or records related to the "No Unequal Rights" petition-gathering process, is probably fair game, law professor Rhodes says.

But that's not all the city asked for. The city asked for a whole lot more. "The question is: why do we need all of those other notes and pastors' sermons to figure out what they did in a training video?" Rhodes says. "That's where you're going to have to balance the burden and the intrusion on religious liberty against the need for information."

Certainly it's not unusual for parties in a lawsuit to file broad discovery requests, letting the attorneys battle it out and argue it down to the middle, Rhodes says. But when it's the fourth largest city in the country fighting a bunch of religious leaders, another approach is probably warranted.

Rhodes says he's yet to hear a convincing argument why the City of Houston should be given access to pastors' sermons and notes in discovery. Parker has since conceded that the initial subpoenas were "overly broad" and says the city's working to narrow the request, supposedly by dropping the word "sermons."

This lawsuit could have sparked a debate about politicking from the pulpit and the often legally-nebulous line between a church advocating certain "issues" and targeting particular candidates or office-holders.

But that's not what we got. Instead, in either a stunning moment of oversight or in incredibly tone-deaf moment of legal strategy, the city let these far-reaching subpoenas fly. That Parker and Feldman have thus far refused to fully cop to that mistake only compounds the problem and ensures only more over-heated rhetoric in the days to come.


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