The city of Houston has fought a pitched battle to enforce its equal-rights ordinance, but in an ironic twist, they may find themselves afoul of the First Amendment for doing so. The ordinance has come under fire from a number of quarters, but perhaps none more determined than Christian pastors who see the law as a threat to their ability to preach. They have filed a lawsuit in an attempt to block the law, and city attorneys in turn demonstrated exactly why they feared this in the first place:
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 Feldmanwrongly 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 for any electoral activity might be legally acceptable, since churches have a tax exemption — but that is generally a state and federal issue, not a municipal distinction. The demand to produce any comments regarding “homosexuality or gender identity” go straight to the heart of the First Amendment and on government censorship. The intent to intimidate Christian pastors into silence on these issues could not be clearer, and uses the threat of government action to back up that intimidation.
The pastors wonder what happened to their constitutional rights of free speech and free exercise of religion, ABC’s local affiliate reports:
Pastor Hernan Castano received a subpoena and believes his sermons are protected by the First Amendment.
“For a city government to step into churches and ask pastors to turn in sermons, it’s gone too far. This is not what America, the nation is about,” he told Eyewitness News. …
Some signatures were acquired at churches which make the sermons fair game, according to City Attorney Dave Feldman.
“If they choose to do this inside the church, choose to do this from the pulpit, then they open the door to the questions being asked,” Feldman said.
Again, that argument might work for issues about the petitions, and possibly even the mayor, if it was tied to their tax status and electoral activities, assuming the city could assert jurisdiction on those points. Those topics might be defensible in a discovery demand, too, although that would come from a court motion rather than a subpoena from the city attorneys. But when it comes to their positions on LGBT issues and “gender identity,” that’s a different kettle of fish. This demonstrates precisely why these pastors opposed the law in the first place and sued to stop it. The law in question would give the local government far too much power to punish legitimate speech and dissent using the rubric of “equal rights,” even though the effect of the law is to heavily burden the right to speech and right to free religious expression.
In the long run, the city may have done these pastors a big favor by tipping their hand so early as to how they planned to use this ordinance all along.