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. 


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