After Houston and San Antonio passed their non-discrimination ordinances in 2013, three large, unhappy churches set out to launch a coordinated recall movement to oust the elected officials who let the ordinances pass—including then San Antonio Mayor Julian Castro (now the U.S. Secretary of Housing and Urban Development) and Houston Mayor Annise Parker. These churches argued the non-discrimination ordinances, which afford rights to gay and transgender individuals, go against their beliefs, violate their religious freedoms and that state law violates their freedom of speak out and campaign against politicians that would vote to approve such LGBT protections.
But when they encountered a specific election code that prevents corporations—including incorporated churches like them—from participating in recall efforts, that's when they sued the state. The churches—Faith Outreach International Center in San Antonio and the Houston's First Church of God and Joint Heirs Fellowship Church—argued that this violated their First Amendment rights to take political action. They wanted to submit a petition with thousands of signatures, preach about the recall from the pulpit and elsewhere, contribute and raise funds for the recall—none of which the law would apparently allow.
Last year, the lower court shot down the churches' argument for the First Amendment violation, saying that, actually, the churches still could take action if they wanted to—they just had to form a super PAC. The lawyers argued that forcing them to register as a political action committee still infringed on their First Amendment rights.
But yesterday, as the case made its way to the federal Fifth Circuit Court of Appeals, oral arguments seemed to skirt many of those main issues. The hearing yesterday largely centered on whether the churches even had standing to bring the suit in the first place.
A lawyer representing the Texas Ethics Commission, which oversees political contributions, argued that the churches' concerns that they would be breaking the law was actually a moot point. He held that, as long as the churches wouldn't be making contributions to individual political candidates or officeholders, they could post as many recall promotions on their websites and submit as many petitions as they wanted. "The reason they don't have standing is because there is no case for controversy," he said. "It is the commission's position that it is not going to enforce any provision of the election code in a way that restricts political contributions, as long as they're not coordinated to a political candidate or officeholder."
Nevertheless, the churches' counsel continued to claim the churches faced discrimination, despite the state's continued promise that everything they wanted to do—on the record, at least—was already allowed under state law. When Jerad Najvar, the attorney arguing on behalf of the churches, continued to press the issue, one Fifth Circuit judge told him, "Your clients can't take yes for an answer."
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Najvar claimed that the "restrictions" the election code placed on his clients' ability to promote a recall—which no one else seemed to believe were restrictions—were still content-based speech restrictions. Najvar said he worried that if his clients proceeded with recall efforts, they could still face legal troubles. He cited a 2012 case in El Paso , Cook v. Tom Brown Ministries, in which church officials faced jail time for trying to oust the El Paso mayor. The state, however, more than once reminded Najvar and the court that a 2013 case brought against the commission by Texans for Free Enterprise made the Cook case irrelevant and ensured that the churches' actions would be deemed legal by the state.
Najvar wouldn't buy it. "Our clients are very fearful," Najvar said. "There should be confidence that you can proceed in the democratic process and not be concerned that your actions might somehow put you subject to criminal sanctions."
Which led one judge to ask, "Isn't that a little paranoid?"
The court has yet to make a decision, but if Thursday's hearing was any indication, the judges might just want the churches to take yes for an answer.