WASHINGTON, October 14, 2014 — Houston city attorneys took the unusual step, disclosed this week, of subpoenaing sermons delivered by local pastors and ministers opposed to Houston’s new equal rights ordinance. The Houston Equal Rights Ordinance (HERO) extends equal rights protections to gay and transgender residents, including the right to use the public restroom facilities that they feel best match their gender identity.
The ordinance applies to all businesses serving the public, private employers, housing, city contracting, and city employment. It exempts churches from its provisions. It contains language banning discrimination on the basis of race, sex, color, age, disability, national origin, and other categories, but the component dealing with gender identity and sexual orientation has drawn the most attention.
Houston residents opposed to HERO launched a petition drive to repeal the ordinance. The drive obtained over 50,000 signatures, more than the 17,269 required to get a repeal referendum on the ballot, but Mayor Annise Parker, the first open lesbian to serve as Houston’s mayor, had made HERO a centerpiece of her administration. She and the city attorney refused to certify the petition.
According to the mayor’s office, each signature on a petition must be accompanied by the signer’s printed name, address, voter registration number or date of birth, and the date signed. Petition gatherers must have personally signed the petition and have sworn before a notary that the signatures were made in their presence. According to Parker, only 15,249, signatures were valid.
Opponents responded with a lawsuit.
The subpoenas are the city’s response to the lawsuit. They demand that the pastors turn over “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 city of Houston has demanded that the pastors turn over materials showing what they have preached from the pulpit, as well as their communications with church members regarding the mayor and the city council. Alliance Defending Freedom (ADF) Senior Legal Council Erik Stanley has called the subpoenas a “witch-hunt,” while ADF Litigation Council Christiana Holcomb says the city council and city attorneys “are engaging in an inquisition.”
The ADF has filed a motion to stop the subpoenas from going forward.
The mayor’s office and city attorneys have declined comment on the subpoenas as part of existing litigation, but city sources have justified the subpoenas as part of the discovery phase of the lawsuit filed by HERO opponents. Texas law, however, says that the discovery process may not be used as a fishing expedition. The materials sought must be “reasonably calculated to lead to the discovery of admissible evidence, not be overly broad, seek only information that is not privileged and relevant to the subject matter of the litigation, and not cause undue burden or harassment.”
Yet the city has subpoenaed sermons, speeches and communications from pastors not involved in the lawsuit. According to ADF attorneys, the city is “illegitimately demanding that the pastors, who are not party to the lawsuit, turn over their constitutionally protected sermons and other communications simply so the city can see if the pastors have ever opposed or criticized the city.”
It is not uncommon for city and local officials to overstep their authority, and in fact it seems that the more local the government, the more inclined it is to abuse citizens’ rights. Numerous people who have run afoul of homeowners’ associations (HOAs) and school boards can attest to that. Peoria Mayor Jim Ardis set off derisive laughter around the world when he ordered the chief of police to move forcefully against a man, Jon Daniel, who launched a parody Twitter account to mock the mayor. That resulted in a SWAT raid on Daniel’s residence.
The raid was only funny because it resulted in no damage or deaths, and ultimately it rebounded against Mayor Ardis. Likewise, Mayor Parker’s demand to give the city oversight of sermons and church communications pertaining to her, homosexuality, and HERO is funny unless it succeeds. Parker’s actions are an abuse of power and an assault on the First Amendment and should be quashed.