City demands pastors' sermons in LGBT lawsuit

UPDATE (3 p.m. EDT): Houston Mayor Annise Parker and City Attorney David Feldman are distancing themselves from the city’s controversial sermon subpoenas. The duo blamed the “overly broad” document requests on their pro bono attorneys at Susman Godfrey L.L.P., city spokeswoman Janice Evans told me in an email.

“Mayor Parker agrees with those who are concerned about the city legal department’s subpoenas for pastor’s sermons,” Evans said. “Neither the mayor nor City Attorney David Feldman were aware the subpoenas had been issued until yesterday. … The city will move to narrow the scope during an upcoming court hearing. Feldman says the focus should be only on communications related to the HERO petition process.”

Susman Godfrey partner Alex Kaplan has called the work for the city “a worthy cause for a worthy client.”

Parker’s apparent about-face comes less than 24 hours after she claimed on social media the sermon request was reasonable. ”If the 5 pastors used pulpits for politics, their sermons are fair game. Were instructions given on filling out anti-HERO petition?" she tweeted last night. The original subpoena document asked for any communications public or private regarding “the topics of equal rights, civil rights, homosexuality, or gender identity.”

Alliance Defending Freedom attorney Erik Stanley hadn’t heard about Parker’s shift in tone this afternoon. “We’ll have to wait and see what they mean by narrowing the subpoena,” Stanley told me, adding he doesn’t believe any subpoena is relevant to whether the petition signatures are valid.

OUR EARLIER REPORT: Lawyers for the city of Houston have ordered five pastors to hand over sermons and electronic communications with congregants containing opinions on homosexuality and gender identity.

Conservative legal group Alliance Defending Freedom (ADF) on Monday revealed the subpoenas—which are now past due—as it prepares to fight the request. ADF calls the four pages of requests for financial, theological, and political opinions and communication a violation of First Amendment free speech.

“The message is clear: Oppose the decisions of city government, and drown in unwarranted, burdensome discovery requests,” an ADF court motion states.

City lawyers claim the subpoenas are a necessary part of defending a lawsuit against the city. Opponents of an LGBT anti-bias policy adopted by the City Council sued on Aug. 5 after Mayor Annise Parker’s administration invalidated a petition to place the ordinance on the November ballot. Religious liberty experts say the Equal Rights Ordinance would force Christian organizations and businesses to act against their biblical beliefs about sexuality. The trial is scheduled for January.

The five pastors were vocal activists in the petition-gathering process, but none of them are listed as plaintiffs in the lawsuit. “The pastors made their sermons relevant to the case by using the pulpit to do political organizing,” Parker’s communication director Janice Evans told me. “This included encouraging congregation members to sign petitions and help gather signatures for Equal Rights Ordinance foes.”

The city is on trial, though, not the petition-organizers, ADF attorneys argue. The lawsuit alleges that while the city charter authorizes only City Secretary Anna Russell to count and verify petitions, City Attorney David Feldman stepped in and refused to accept thousands of signatures sworn before a notary simply because his staff couldn’t read them. Russell approved those signatures automatically because they’d been certified by a notary.

City lawyers demand the pastors turn over any communication regarding “the topics of equal rights, civil rights, homosexuality, or gender identity”—along with documented proof of who financed the petition drive, what debate went into marketing strategies, and any information regarding the tens of thousands of signatures. In Russell’s Oct. 6 deposition, she confirmed no opinions, motives, or finances are considered when determining whether a signature is valid.

ADF’s Erik Stanley told me he is confident the courts will throw out the subpoenas. Such invasive probes have a “chilling” effect on free speech, a term used in Supreme Court precedent, he said. Government can suppress a First Amendment freedom through harassment, even if it doesn’t formally treat speech as illegal. The harassment doesn’t have to be intentional, either.

“This is clearly a massive overreach by what just is an outright tyrannical regime in this city trying to punish pastors for daring to step up against them, and we’re simply not going to yield, bend, or bow,” said Dave Welch, a subpoenaed pastor and leader of the No UNequal Rights petition drive. The pastors aren’t afraid to release their sermons—they want people to hear the message they preach, Welch said. But giving sermons and pastors’ private correspondence to the government to be used as evidence against them is another matter.

The Houston pastors received encouragement from across the conservative Christian community Tuesday, from John Piper to Russell Moore, head of the Southern Baptist Ethics and Religious Liberty Commission. “I am simply stunned by the sheer audacity of this,” Moore wrote, encouraging the pastors to show “the same kind of defiance the Apostle Paul showed the magistrates in Philippi” (Acts 16:37).