There is presently a debate going on in the City of Houston over an ordinance barring discrimination based on sexual orientation, a measure that many American cities have adopted in recent years and which is similar to the Employment Non-Discrimination Act which has been languishing in Congress since President Obama took office. The ordinance easily passed the City Council earlier this year, not withstanding the strong opposition of many members of the Christian community in Houston, including Pastors who have contended that the law threatens to impinge on their First Amendment rights and their ability to run their churches as they see fit. Several of those groups later joined together to get a measure on the ballot that would give residents the ability to repeal the ordinance. The group submitted their signatures, but the City Attorney later determined that enough of the signatures were invalid such that they had failed to submit enough valid signatures. In response, a lawsuit was filed to overturn that decision and allow the referendum to go forward which the city later removed to Federal Court. Given the fact that the Mayor of Houston, Anise Parker, the debate over the law has apparent gotten quite heated and, recently, the city has attempted to subpoena copies of the sermons of many of the Pastors who have been most outspoken against the law and are tied to the groups that have initiated these lawsuits:
Houston’s embattled equal rights ordinance took another legal turn this week when it surfaced that city attorneys, in an unusual step, subpoenaed sermons given by local pastors who oppose the law and are tied to the conservative Christian activists that have sued the city.
Opponents of the equal rights ordinance are hoping to force a repeal referendum when they get their day in court in January, claiming City Attorney David Feldman wrongly determined they had not gathered enough valid signatures to qualify for the ballot. 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.”
The subpoenas were issued to several high-profile pastors and religious leaders who have been vocal in opposing the ordinance. The Alliance Defending Freedom has filed a motion on behalf of the pastors seeking to quash the subpoenas.
Since the city is not commenting beyond the subpoena’s, it’s hard to know exactly what they are looking for here, or what they think that they could uncover that would be admissible in a Court of law on the issue of signature gathering. This isn’t, it should be noted, a question of the city challenging the tax exempt status of the churches due to political advocacy and, even if it were, the rules governing such things are generally matters of Federal law, not state law, and certainly not the laws of one city in one state. More importantly, the rules about tax exemptions for religious institution do not prevent churches and Pastors from taking stands on political issues of the day or even advocating certain positions. If they did, then people like Martin Luther King Jr. would have been violating those rules throughout the Civil Rights Movement. According to some reports, the city is arguing that the churches were engaging in supposedly illegal campaigning by backing the repeal measure and helping to organize the signature, but even if that’s true it strikes me that any law that would prevent such activity would be a violation of the First Amendment rights of both the churches and the Pastors themselves, not to mention being a pretty extreme intrusion by the state into the church’s operations.
As Eugene Volokh notes in his post on this issue, it probably isn’t a per se violation of the First Amendment for a government entity, or a private entity, to seek to subpoena a Pastor’s sermons because there may be some circumstances where those sermons would be relevant to an ongoing legal matter. The two examples he uses involve a hypothetical situation where someone sues a Pastor claiming that he was slandered in a sermon and an employee employed in a non-religious capacity suing for sex discrimination who alleges that the Pastor admitted in a sermon that he fired that employee for a reason banned by Federal law. Obviously, in those types of case the sermon or sermons alleged to contain the slanderous material would be considered discoverable in a civil proceeding, and enforceable by court subpoena. As Volokh notes, though, the subpoena the city issued here seems to be incredibly over broad, not the least because it asks for material that has nothing at all to do with the subject matter of the lawsuit:
I don’t quite see how “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” would be relevant to the litigation about the validity of the referendum petitions.
At the very least, the subpoena seems vastly overbroad. And the fact that it seeks the contents of religious speeches does counsel in favor of making the subpoena as narrow as possible (which would likewise be the case if it sought the contents of political speeches). I’m not sure what sort of legally relevant information might be contained in the subpoenaed sermons. But the subpoena ought to be narrowed to that legally relevant information, not to all things about homosexuality, gender identity, the mayor, or even the petition or the ordinance.
(…)
[W]hile sermons are generally not intended to be as confidential as the names of journalists’ sources, there is still good reason to limit demands for the text of sermons when the text is irrelevant and therefore unnecessary to any legal decisionmaking. Such demands create a feeling of surveillance that may indeed deter or dampen some kinds of religious speech. And while such deterrence or dampening is constitutional when relevant information is subpoenaed (just as it’s constitutional as to subpoenas related to editorial meetings and tenure reviews), it should be avoided and minimized in cases where the subpoenaed information is entirely or largely legally irrelevant.
Volokh also notes that Texas has its own version of the Religious Freedom Restoration Act, the law that was at the heart of this summer’s Hobby Lobby decision. Under that statute, a Pastor who is subject to a subpoena could argue that revealing the text of his sermons would violate the free exercise of religion. In that case, the city would then have to show that it is using the least restrictive means to achieve whatever goal it is attempting to achieve with this subpoena. While I’m unaware of any case where the Federal RFRA or any of its state equivalents was used in this type of situation, the Supreme Court’s ruling this summer shows us that the “least restrictive means” test would be a hard one to overcome, and that the significant breadth of this subpoena would likely mean that an RFRA challenge would be successful.
Like Volokh, I agree that there isn’t a per se bar against subpoenas directed at a Pastor’s sermon, In addition to the examples that he cites, there are other obvious examples where such a subpoena would be relevant to an underlying lawsuit or criminal proceedings. It’s even possible that a more narrow document request in this case would be acceptable under the law. In it’s current form, however, it seems pretty clear that the City’s subpoena request, which some are alleging to be an attempt at political intimidation, is far too broad and ought not to be allowed to proceed forward. Narrowness is something that is called for whenever documents are subpoenaed like this, but it would seem to be something that ought to be especially important when significant First Amendment issues are involved, as they clearly are in this case.
Here are links to the subpoena request and the memorandum in support of the motion to quash the subpoenas.
Update: Houston appears to have backed down.
