Discovering Government Intimidation in Houston

From the Heritage Foundation’s InsiderOnline:

What’s going on in Houston, where the city this week subpoenaed the sermons and other private papers of a group of pastors? The background, from Andrew Kloster:

When the Houston City Council passed an ordinance that some claim would allow men into women’s restrooms, and vice-versa, voters got mad. Many pastors got mad too–and they helped organize a petition drive to remove the law from the books. They reportedly got more than 50,000 signatures, when all they needed was 17,269.

But the city claimed that only 15,000 were valid, and refused to place the issue on the ballot. So, in August, some of the petition’s supporters filed a lawsuit to force the mayor to allow citizens to vote on whether to repeal the law.

Here’s where it gets interesting: In response, the city of Houston has now issued incredibly broad subpoenas as part of the discovery process to several pastors who are not directly involved in the lawsuit demanding that they provide certain information. “Discovery” is a legal procedure which allows people who sue or are sued to obtain information that is relevant to that lawsuit. But rather than simply asking for information about the validity of petition signatures, which would be germane to the lawsuit, Houston has demanded that the pastors turn over all records in their possession relating to “the topics of equal rights, civil rights, homosexuality, or gender identity,” some communications with lawyers, budgetary information and “[a]ll speeches, presentations, or sermons related to [the bathroom ordinance], the Petition, Mayor Annise Parker, homosexuality, or gender identity….” [Daily Signal, October 15]

If it sounds to you like the city is just using the discovery process to intimidate critics, you’re not the only one who thinks so. Here is a letter Texas Attorney General Greg Abbot has sent to the City Attorney of Houston:

Dear Mr. Feldman:

Your office has demanded that four Houston pastors hand over to the city government many of their private papers, including their sermons. Whether you intend it to be so or not, your action is a direct assault on the religious liberty guaranteed by the First Amendment. The people of Houston and their religious leaders must be absolutely secure in the knowledge that their religious affairs are beyond the reach of the government. Nothing short of an immediate reversal by your office will provide that security. I call on you to withdraw the subpoenas without further delay.

I recognize that the subpoenas arise from litigation related to a petition to repeal an ordinance adopted by the city council. But the litigation discovery process is not a license for government officials to inquire into religious affairs. Nor is your office’s desire to vigorously support the ordinance any excuse for these subpoenas. No matter what public policy is at stake, government officials must exercise the utmost care when our work touches on religious matters. If we err, it must be on the side of preserving the autonomy of religious institutions and the liberty of religious believers. Your aggressive and invasive subpoenas show no regard for the very serious First Amendment considerations at stake.

A statement released by the Mayor’s Office claims that the subpoenas were prepared by outside lawyers and that neither you nor Mayor Parker was aware of them before they were issued. Nevertheless, these lawyers acted in the City’s name, and you are responsible for their actions. You should immediately instruct your lawyers to withdraw the City’s subpoenas. Religious institutions and their congregants should never have to worry that a government they disagree with will attempt to interfere in their religious affairs. Instead of safeguarding that trust, you appear to have given some of the most powerful law firms in Houston free rein to harass and intimidate pastors who oppose City policy. In good faith, I hope you merely failed to anticipate how inappropriately aggressive your lawyers would be. Many, however, believe your actions reflect the city government’s hostility to religious beliefs that do not align with ci ty policies.

I urge you to demonstrate the City’s commitment to religious liberty and to true diversity of belief by unilaterally withdrawing these subpoenas immediately. Your stated intention to wait for further court proceedings falls woefully short of the urgent action needed to reassure the people of Houston that their government respects their freedom of religion and does not punish those who oppose city policies on religious grounds.


Greg Abbott
Attorney General of Texas [As reproduced at Wilson County News, October 15.]

In response to considerable negative publicity over the subpoenas, the city filed a modified subpoena on Friday that did not include the word “sermon,” but otherwise asked the pastors to produce the same information as the original subpoena. Mayor Parker told the Houston Chronicle that the only thing the city wants is communications from pastors about the petitions process. [Houston Chronicle, October 17]