Houston’s Sermon Subpoenas: Bad Lawyering, Terrible Politics

Houston Mayor Annise Parker. 

Photo by Jemal Countess/Getty Images

It does not look good—no matter how you frame it, no matter how you justify it, no matter how logically you defend it—for the government to subpoena a pastor’s sermons. Before this week, I would have thought that was common knowledge among humans over the age of, say, 4. But apparently it is not, because news broke on Wednesday that attorneys defending Houston’s Equal Rights Ordinance, an LGBTQ anti-discrimination law passed last May by the Houston City Council, subpoenaed five conservative pastors, demanding that they turn over all sermons discussing homosexuality or gender identity.

In an instant, the right-wing outrage machine clicked into action. The Examiner: “Houston’s Pro-LGBT mayor stomps pastors First Amendment rights.” Breitbart: “Religious liberty under attack.” Fox News: “[T]he mayor wants to publicly shame the ministers.” The Federalist: “Intimidation and bullying”; “totalitarianism”; “attacks on religious liberty and free speech.”

I suppose this is the point when I could offer a lukewarm defense of Houston’s actions. I could explain that pastors are suspected of misinforming their congregants about how to gather valid signatures to repeal the ordinance. I could point out that the city was, in issuing the subpoenas, merely responding to a lawsuit initiated by the ordinance’s opponents. I could note, as the admirably pro-First Amendment Eugene Volokh explained, that there’s no constitutional bar to subpoenaing sermons.

But I’m not particularly interested in defending the Houston lawyers’ actions, because, frankly, they were incredibly stupid, instantly regrettable, and utterly unnecessary. Yes, Houston’s anti-LGBT coalition started this mess by trying to repeal the ordinance, allegedly failing to get enough valid signatures, then suing to push their repeal effort on the ballot anyway. Yes, Houston’s lawyers have significant evidence that some pastors may have taught their congregants an invalid method of collecting signatures.

The fact remains, however, that the subpoenas are vastly, almost comically overbroad. Every sermon related to homosexuality or gender identity? What a shockingly idiotic way to gather information. If Houston’s lawyers felt it was absolutely necessary to subpoena the pastors, they could have simply demanded any sermon that pertained to the repeal effort itself. By asking for every single sermon pertaining to LGBTQ issues, Houston’s attorneys have painted a target on their backs: To those unschooled in the invasive art of discovery, these subpoenas sound like a blatant effort to chill anti-gay, anti-trans religious speech.

They are nothing of the sort, of course, but that’s immaterial. Houston, and defenders of the ordinance, now look terrible—to Houston voters, to the judge overseeing the case, to everybody paying attention. And, even worse, the city’s attorneys have given anti-gay activists ostensible evidence that their paranoia about the “totalitarianism” of the gay rights movement was entirely justified. The Christian persecution complex just got an unearned run off the good guys’ error.

Scrambling for damage control, Houston’s attorneys have refiled the subpoenas with a narrower focus on  “petition process instructions”—though they still seem to request “speeches” delivered by pastors to their congregants. That’s yet another misstep. The city hasn’t given any evidence that these speeches will contain the smoking gun, and absent that, there’s really no point in prolonging this disaster. The new subpoenas should be recalled and the city should apologize. Legally speaking, it’s unfair that the same churches who started this controversy should be shielded from the invasive demands on discovery. But with so many enemies waiting to pounce on the smallest mistake, the gay rights movement can’t afford a PR disaster as avoidable as this one.