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Houston: It’s Not a Problem


Last week the news came out that the city of Houston subpoenaed the sermons of five pastors related to a legal fight over a petition. In its first iteration, the subpoena requested, ““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 reaction from the people in the church-state field was surprisingly unanimous. Both the Alliance Defending Freedom and Americans United for the Separation of Church and State publicly stated that filing such a broad subpoena was an overreach that bordered on violating the pastors’ ability to freely express and exercise their beliefs. Interestingly enough, Houston’s mayor, who is at the center of this firestorm, agreed. In a statement Mayor Parker said that she agreed with the criticism of the overly broad subpoenas and that the city would seek to narrow the scope of the subpoenas. To this end, the city amended their discovery requests and are now seeking, ““[a]ll speeches or presentations related to [the Houston Equal Rights Ordinance] or the Petition prepared by, delivered by, revised by, or approved by [the pastors] or in [the pastors’] possession.” Despite this, some have still been critical of any attempt by the City to collect any documents from these pastors, citing concerns about the separation of church and state and a potential chilling effect to pastoral speech in the future because of these subpoenas. However, I’m not sure that there was a significant church-state issue even with the subpoenas in their original form, and what little concern was justified has been alleviated with the narrowing of the request by the city. There are several reasons why Houston does not have a problem now, and possibly never did –

1.       Facts make the case – In the reporting of this case, there seems to have been a lot of sleight of hand by those who want to make the argument for an oppressive government seeking to harass churches. Here is a brief sketch of the facts. Houston passed an antidiscrimination ordinance called HERO (Houston Equal Rights Ordinance) that provided several protections for the LGBT community in that city. Opponents of the measure, including several Christian groups, hoping to repeal the ordinance, collected signatures on a petition to have referendum on the ordinance included on the November ballot. The subpoenaed pastors aided in collecting signatures for the petition. The city invalidated the petition based on concerns about the rules regarding petitions in Houston not being properly followed. Some of the Christian groups (but not the pastors or the churches they lead) sued the city. While many media outlets have reported that the pastors are not party to the case, which is accurate, they are not fully reporting the role the pastors played in the petition drive. The pastors being subpoenaed are certainly related to the organizations that sued and worked in conjunction with those organizations. That’s important because if they were working with those organizations than what they said to the public about the petitions and the rules regarding petitions is relevant to the case.

2.       This is what lawyers do in discovery – Some of the confusion about what is happening here is due to the fact that many of the people doing this analysis don’t understand what lawyers do, and those that do are making a mountain out of a molehill (and I would suggest that they probably know exactly what they’re doing). During the discovery process, lawyers draft discovery requests (for the parties in the case) and subpoenas (for those who are not parties) seeking relevant information (which is generally given very wide latitude by courts). Because lawyers want to get as much information from related parties as possible in their search for anything that can help their case, they tend to draft requests that will give them as much information as they can obtain. If they narrow their requests themselves, they run the risk of having the other side refuse to turn over something that actual is relevant to their case. These requests are regularly objected to as either vague, overbroad, or irrelevant to the case, and courts often step in to narrow these requests. There really is nothing out of the ordinary going on here. I can confidently say to you that as you read this (no matter what time of day it is) some lawyer in some part of the world is drafting one of these all encompassing discovery requests. With or without all this media attention, the same thing would happen – the parties would make all encompassing discovery requests, both parties (and the outside parties in terms of subpoenas) would object, and then all the parties would show up in court and let the judge decide. That said, I agree with all the commentators who have noted that the original requests are vague, overbroad, and ask for irrelevant information. If the city’s pro bono lawyers were savvier, they would have realized that in a case involving churches and pastors, it is probably better to narrowly tailor your discovery request.  But I cannot blame them for sending the original requests – this is just what lawyers do.

3.       A subpoena isn’t what you think it is – I have to admit I am having a hard time understanding the chilling effect argument. As far as I can tell, the argument is that if pastors know that their sermons and other public speeches can be subpoenaed, they will be more cautious about what they say in public. I think this type of argument greatly misunderstands what a subpoena is and what it does. These pastors are not being subpoenaed randomly. They are being subpoenaed because what they said is relevant to a legal controversy to which they are intimately connected, despite the fact that they are not named parties. The pastors subpoenaed were working with organizations on a particular issue and those organizations then sued the government. This subpoena is not going to lead to the indiscriminate monitoring of sermons by the government. Now as a pastor you may have to turn over your speeches if you work with an organization that sues the government and then the government finds out that you worked with those organizations about the very thing that the government is being sued over. Furthermore, while a subpoena may demand that you turn over certain information, the subpoena only has power over the particular case to which it is connected. As I said earlier, facts make cases. Therefore, while these pastors may have to turn over documents in one case, they may not have to do so in a case with different facts. The outcome of this discovery dispute is not necessarily binding in future cases.

4.       There is no such thing as sermon privilege – With some of the analysis going on here, you would think that there is some sort of sermon privilege that is similar to priest –penitent, attorney-client, or marital privilege. The pulpit does not protect your speech from being known by the government. If these pastors advocated lawbreaking of some sort in their speeches, than those speeches can be used as evidence. More to the point, if the pastors in a speech advocated a tactic that circumvented the rules of gathering signatures for a petition, than the city deserves to know about it. Furthermore, I would think that these pastors would relish the chance to have their speeches reach audiences who would probably never volunteer to come hear them.

Finally, the separation of church and state (or lack thereof) is a two–way street. It has been interesting to watch the same organizations that argue against the separation of church and state when it comes to school prayer or same-sex marriage or Ten Commandments monuments now take up the mantle in this particular case. Churches can’t have it both ways. If they seek to become involved in the quagmire of legislative politics, they open themselves up to things like lawsuits and subpoenas. You can’t step in the ring and then demand that no one take swings at you. The pastors involved put themselves in this position. Moreover, when we look at the fact that lawyers make these types of requests all the time, when we realize that the probability of this case having lasting ramifications is actually quite low, and finally when we look at the fact that the city agreed with the criticism and adjusted their behavior accordingly, I can’t see how we have a real church-state problem in Houston.

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