Monday, October 20, 2014

The Revision That Didn't Revise

Last week, news broke that Mayor Parker's legal team subpoenaed five area pastors' sermon notes (among other things) on topics related to HERO, gender identity, homosexuality, and Mayor Parker. A swift outcry soon erupted from the Christian sphere, decrying the subpoenas as an abuse of governmental authority and serious threat to religious liberty. I covered that topic here.

In response, the Mayor distanced herself from her original position that "if the pastors used pulpits for politics, their sermons are fair game." But it wasn't much distance. City Attorney David Feldman said that, while the original requests were overly broad in their scope, if the pastors engaged in political speech from the pulpit, it would not be protected. Someone needs a First Amendment refresher course. 

On Friday, however, the City filed a response that revised the scope of the original subpoenas. But the "revision" doesn't seem to have revised much. Here's what the response says: 
Request No. 12 originally read: 
All speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuals, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession. 
Defendants [the City of Houston] hereby revise Request No. 12 as follows: 
All speeches or presentations related to HERO or the Petition prepared by, delivered by, revised by, or approved by you or in your possession.
No definitive word on whether a sermon counts as a speech or presentation. What the response also omits is that Request No. 12 represents one request out of seventeen total document requests. Left untouched are requests like these: 
1. All documents or communications to, from, CCing, BCCing, or forwarded to you, or otherwise in your possession, relating to or referring to any of the following in connection in any way with HERO, the Petition:...the topics of equal rights, civil rights, homosexuality, or gender identity; 
and 
4. All communications with members of your congregation regarding HERO or the Petition.
In other words, the City hasn't backed off from its original demands. David Feldman issued a revision that didn't really revise anything. In my opinion, instead of backing off, the City is trying to double-down on its position with political savvy to appease the public. Many Christian leaders are not taking the bait.

From a legal standpoint, it will be interesting to see how the judge rules on the pastors' Motion to Quash. I suspect he will quash at least some of the more onerous requests, if not most of them entirely. The requests are still so overly broad, burdensome, and harassing (not to mention unrelated to the underlying issues of the litigation), that I don't think they will survive a challenge under the Texas Rules of Civil Procedure. The judge likely will not entertain a First Amendment argument on the issue. But if the Court did address the First Amendment, I think the pastors win. The requests would have a chilling effect on religious participation, and there are numerous other ways to get the requested information—they are not drafted narrowly enough to warrant the intrusion, especially for a non-party.

Culturally, this "scandal" says much about our beliefs and assumptions as a society. If we boil the case down to its essence, we have a group of people who sought to petition their government for a redress of grievances. In response, that same government set out to harass and bully them into submission through the litigation process (a burdensome and expensive undertaking). The right of the people to "petition the Government for a redress of grievances" is fundamental to a self-governing society. The plaintiffs didn't even make it past the petition part; it was thrown out by the same government that was established to protect their right to petition it.

We are facing competing worldviews on the nature and purpose of government. One loves liberty, distrusts centralized political power, and understands the depravity of man. The other entrusts our greatest needs to the government as our source of goodness. 

I believe that the City's actions bely a deep misconception about how society ought to function. Whereas, at America's founding, we established a society in which the government was accountable to the people, the City of Houston has repeatedly shown that it believes the people are accountable to their government. This type of thinking is anathema to a free society. That lawyers representing a governmental entity could issue such demands with a straight face tells me that the concept of liberty is in serious peril among our nation's political actors. 

I don't know how this case will turn out. Trial is set for January, and I hope the City loses. I am still bewildered that the City isn't the plaintiff. But what I do know is that this case has served as a medium of exposure—exposure of underlying political philosophies that are competing for dominance as we speak. 

Casting the political sensitivity of this case aside, it should serve as a wakeup call that this is an ongoing ideological battle. Is the government accountable to the people? Or are the people accountable to the government? Your beliefs about the nature of man will influence your answer to that question. And your answer to that question will largely inform your response to similar situations in the future. 


Tuesday, October 14, 2014

Victory Through Defeat


Someone told me recently that we would never face religious liberty issues in Houston. There wouldn't be a need for a religious liberty lawyer in such a conservative state. Well, the pigs have flown. The Houston Equal Rights Ordinance controversy continues, this time with heavy religious liberty implications.

Before we get started, a little background is in order. That can be found herehere, and here.

The HERO ordinance and subsequent repeal referendum efforts have been embroiled in litigation since August. Yesterday, news broke that the City of Houston's legal team had demanded, among other things, "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" a list of area pastors who are not parties to the lawsuit. The City of Houston issued non-party subpoenas for the document requests, which are punishable by contempt of court if not properly responded to (or quashed by the judge). An example of the subpoenas issued by the City can be found here.

As an attorney, I know that these subpoenas are not quite as big a deal as some people make it out to be. This isn't the Inquisition. But it is unnerving. If the pastors refuse to respond (e.g., turn over their documents), and the Court does not quash the subpoenas or issue a protective order, the pastors theoretically could face jail time. That is scary. Normally, non-party subpoenas aren't that big of a deal. Lawyers issue them all the time. But there is something quite different when a governmental entity demands to comb through sermon notes on hot-button moral issues from non-party pastors. (Phrases like "separation of church and state"—the darling phrase of liberals—come to mind). Alliance Defending Freedom wrote a compelling memorandum in the case on why the Court should quash the subpoenas, which you can read here. Their press release on the case can be found here.

As a matter of normal legal practice, I doubt that Mayor Parker, David Feldman, or anyone at the City of Houston read the subpoenas before they were sent, much less specifically ordered the discovery and confiscation of sermon notes and other communications involving homosexuality and gender identity. Typically in litigation lawyers will throw a bunch of jello at a wall and see what sticks, so to speak. Or, to put it another way, they'll fill up the kitchen sink and see what takes. In other words, the lawyer drafting the discovery requests and subpoenas probably tried to think of every conceivable thing that could possibly be related to this lawsuit and asked for it. You don't get it if you never ask, and litigation is all about being aggressive and taking anything that the other side will give you. Again, these are just requests (issued by a lawyer), and the judge can quash the subpoenas or issue a protective order for the pastors. 

Usually when we address litigation tactics, we are dealing with private parties, commercial disputes, and other non-religious issues. The "sensitivity" in this case comes from the fact that the government is demanding to review sermons and other religious speech in connection with certain pastors' opposition to the HERO ordinance. And, frankly, I think the City of Houston is on a mission to shame the pastors and their beliefs by exposing their sermons and the content of their communications. If it can show that the pastors were spreading an irrational and bigoted fear of the ordinance's moral consequences, then the City can shame the pastors out of the controversy and dismiss their petitions as mere fear-mongering. The only problem (besides glaring First Amendment issues) is that the contents of the pastors' sermons, communications, or anything else requested (one request was for the pastors' resumes!) has nothing to do with the underlying lawsuit. This case, at its core, is about whether the City Secretary properly certified the petition signatures according to the City Charter. You don't need a pastor's sermon notes to figure that out. 

As Russell Moore put it,
 [t]he preaching of sermons in the pulpit of churches is of no concern to any government bureaucrat at all. This country settled, a long time ago, with a First Amendment that the government would not supervise, license, or bully religious institutions. That right wasn't handed out by the government, as a kind of temporary restraining order. It was a recognition of a self-evident truth.
Amen, but I don't think the government is trying to supervise, license, or bully religious institutions here. Not yet, at least.

As we analyze what's going on, I want us to be careful in how we think about the liberty implications of the City's actions. Is this the worst thing that has ever happened to Christians for their faith? Not by a long shot. But it is unnerving. Do not succumb to the lie that "anti-gay" Christians are trying to divert attention away from the real victims of harassment and discrimination. That's a red herring. And don't believe Mayor Parker when she says that if the pastors used sermons for politics, then they are fair game. I disagree. Jesus Christ has lordship over everything, including our politics. Therefore, I believe our preachers should especially preach on politics from the pulpit. From a theological perspective, at least, the Bible has ample advice on the political sphere. You should read Puritan and Reformed pastors' sermons during the Revolutionary War. Pastors routinely addressed political happenings from the pulpit, and this was the milieu that enshrined religious liberty in the Constitution. So I don't buy the argument that political sermons are fair game. They're not. Not even in the ballpark.

Religious liberty, freedom of speech, and freedom of association are foundational principles of this nation. People fought and died for our religious liberty. For hundreds of years and in hostile cultures, people were martyred so that we may enjoy the first-fruits of their sacrifice. So let us not take threats to our religious liberty lightly, no matter how innocuous they may seem.

At the same time, the reality is that we are merely dealing with an overbroad discovery request from a zealous trial lawyer employed by the City. So the sky is not falling. This is not a government-wide "approval" system of pulpit messages. The pastors aren't being threatened with punishment merely for the contents of their sermons. But this is harassment, and the small things add up. A government that tries to intimidate pastors who would seek to employ the democratic process to repeal a morally questionable piece of legislation is no friend of liberty, religious or otherwise. The government answers to the people; the people do not answer to the government. Remember that. The subpoena is only step one in their 12-step program.

In all of this, however, there is good news. And it is a glorious prognosis:
Only let your manner of life be worthy of the gospel of Christ, so that whether I come and see you or am absent, I may hear of you that you are standing firm in one spirit, with one mind striving side by side for the faith of the gospel, and not frightened in anything by your opponents. This is a clear sign to them of their destruction, but of your salvation, and that from God. For it has been granted to you that for the sake of Christ you should not only believe in him but also suffer for his sake, engaged in the same conflict that you saw I had and now hear that I still have (Phil. 1:27–30).
We are not to be frightened in anything from our opponents. Yes, we have opponents. And when we stand firm in one spirit striving side by side for the gospel (including what it says about gender identity and sexuality), it is a sign to our opponents of their destruction and of our salvation.  We will suffer in some ways, engaged in this conflict. Maybe those pastors will go to jail, but they probably won't. The mere threat of jail time, though, is serious. If they do go to jail, it will be a sign that we have won. Our victory will be wrought through suffering, whether great or small. This has been granted to us by God as a sign of our salvation. Praise God for that; it cannot be taken away.

So what do we do in the meantime? Pray for wisdom, think, and never cease to preach the Word of God and all its implications for our lives. And pray that, by God's grace, those who seek to threaten our liberty will soon strive side by side with us as brothers. It's happened before. May it happen again.