If you’re anything like me, your news feed exploded a couple of days ago with articles on right-wing news sites alleging that the oft foretold persecution of anti-gay Christians has begun in Houston. It seems the Mayor of Houston issued subpoenas for the sermons of five anti-gay pastors. Censorship! Persecution! The criminalization of anti-gay speech! Or was it? What exactly is going on here?
The Houston City Council approved an anti-discrimination ordinance, Houston Equal Rights Ordinance, last June. Angered at the prospect of trans women using women’s bathrooms, conservatives began the petition process to put the measure on the ballot in hopes that voters will defeat it come November. A large number of pastors and churches were highly involved in these efforts. While the opponents of the anti-discrimination ordinance had collected the required number of signatures, they violated the legal requirements and more than half of the pages were invalid, so the petition was thrown out. The petitioners then filed suit, alleging that the petition should have been accepted.
One of the issues at hand is whether those spearheading the petition knew the legal requirements, including the requirement that each page must be notarized by a registered voter. Also at issue is the role five pastors and their churches played in gathering the signatures, which could be problematic given the expectation that churches, being tax exempt, should stay out of politics. As this lawsuit goes forward, understanding how the petitions were collected and who said what and communicated what with who is of great importance.
During the early phases of a lawsuit, it is common for the court to issue subpoenas to compel the discovery of evidence relevant to the case. Even speech protected by the first amendment may be subject to subpoenas if it is relevant to the case. Courts can subpoena private emails and cell phone records and, yes, sermons. This is not the suppression of speech but rather a legal mechanism for gathering all information relevant to a case before it goes to trial. When you file a lawsuit, you open yourself to subpoenas. That is how the process works.
Unfortunately, conservatives don’t appear to be aware of this.
Conservative media reacted with outrage to reports that the city of Houston had subpoenaed five local pastors requesting a variety of documents related to their involvement in the legal battle over the city’s recently passed Equal Rights Ordinance (HERO), which prohibits discrimination against LGBT residents. The subpoenas included a request for “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity.”
On October 13, the anti-gay legal group Alliance Defending Freedom (ADF) filed a motion to quash the subpoenas, calling them “overbroad” and “unduly burdensome.” The motion was reported by Fox News’ Todd Starnes, who accused the city of Houston of trying to “silence American pastors” and “deconstruct religious liberty”:
I predicted that the government would one day try to silence American pastors. I warned that under the guise of “tolerance and diversity” elected officials would attempt to deconstruct religious liberty.
Sadly, that day arrived sooner than even I expected.
Now is the time for pastors and people of faith to take a stand. We must rise up and reject this despicable strong-arm attack on religious liberty. We cannot allow ministers to be intimidated by government thugs.
Starnes’ apoplectic report triggered a wave of conservative misinformation about the subpoenas, with commentators accusing the city government of engaging in unconstitutional bullying and anti-religious harassment. Fox News has covered the story in similarly misleading segments on Fox & Friends, Hannity, and The Kelly File:
The simple reality is that there is no religious exemption from being issued a subpoena for information relevant to a court case. Nor need there be! A subpoena is simply a way of gathering information relevant to a case. Issuing a subpoena for something is not the same as criminalizing it.
In his post on the subject, blogger JT of WWJTD quoted as follows from an outraged post by blogger Rebecca Hamilton on the Patheos Catholic channel:
To paraphrase the children’s song, If you’re Christian and they know it, hire your lawyer. You’re probably going to need one.
I’d amend it to “If you’re Christian and breaking the law, hire a lawyer, because the laws apply to you just like everybody else.”
Now yes, lawyers may file a motion to quash subpoenas of information their clients feel is not relevant to the court case—that, too, is part of the legal process. But it’s worth noting that the information the subpoenas were issued for does appear to be relevant to the court case. Again, this is how it works. As Joel McDurmon of the conservative American Vision explained,
I write this only to calm some of the unnecessary alarm, and to introduce some reason and understanding into the mix. The headlines read as if the city has made some move to start monitoring all pastors’ sermons, and this simply is not the case. It also gives the impression that this is some out-of-the-blue, general attack tactic by the activists upon the pulpit. It is not. It is not out-of-the-blue, it is not broad and general as far as the implicated pastors goes, and it should not be a surprise at all.
The City is not making a move to monitor sermons. The city is merely responding to a lawsuit against it and using standard powers of discovery in regard to a handful of pastors who are implicated as relevant to the lawsuit. The issue is here: once you file a lawsuit, you open up yourself and potentially your friends and acquaintances to discovery. This is the aspect that has not been reported, but it is an important part of the context.
This is basic court procedure. But the headlines make it sound like a surprise attack by leftists advancing their agenda on unsuspecting Christians.
In the face of national outrage from very angry but woefully misinformed conservatives and religious conservatives, the city has promised to revise the subpoenas to narrow their scope. But the sad thing is that all of this—from the outrage to the subpoena revision—was unnecessary. There was no suppression of pastor’s speech. There was no threat to religious liberties or the first amendment. All there was was the legal process working the way the legal process is supposed to work.
Unfortunately, conservatives still don’t appear to be satisfied, and this story will likely be repeated for years as evidence of the coming persecution of Christians.