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.
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.