Editorial: Houston subpoenas doubly disturbing

Houston Mayor Annise Parker might be in the running for the next Nobel Peace Prize for accomplishing the seemingly impossible. Her honor’s administration inadvertently gathered fundamentalist and liberal Christians, Muslims and Jews, and even Baha’is and Baptists in one accord. They’re together. Solid. United.

Of course, Parker’s prize would go down in history as the “ignoble Nobel.”

Editor Marv KnoxHer administration subpoenaed five pastors who opposed the Houston Equal Rights Ordinance—HERO—which adds sexual orientation and “gender identity” to protections guaranteed in the city’s laws.

Most controversially, the new ordinance originally proposed: “It shall be unlawful for any place of public accommodation or any employee or agent thereof to intentionally deny any person entry to any restroom, shower room, or similar facility that is consistent with and appropriate to that person’s expression of gender identity.” In other words, it would allow people to select restrooms based upon their “gender identity,” not original anatomy. That section was stricken from the final law.

Opponents petitioned the city for a voter referendum on the new anti-discrimination protections. The city rejected their endeavor. Then some opponents sued, claiming the city wrongfully quashed the referendum.

Five pastors subpoenaed

Along the way, the city subpoenaed the five pastors—none of whom are litigants in the suit—demanding they 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.”

Pastors, rabbis, imams and people of many faiths howled. As well they should.

Opponents ranged from the left—author Rachel Held Evans and Interfaith Alliance President Welton Gaddy, both supporters of homosexual rights—to the right—Southern Baptist Ethics & Religious Liberty Commission head Russell Moore and Alliance Defending Freedom leader Greg Scott. Of course, politicians raised Cain.

Despite the outcry, enforcement of the Houston subpoenas does not seem likely.

To begin with, the mayor and the city attorney backpedaled when the subpoenas stirred up a storm.

A spokesperson for the mayor’s office told the Wall Street Journal: “Mayor Parker agrees with those who are concerned about the city legal department’s subpoenas for pastors’ sermons. The subpoenas were issued by pro bono attorneys helping the city prepare for the trial regarding the petition to repeal the new Houston Equal Rights Ordinance (HERO) in January. Neither the mayor nor City Attorney David Feldman were aware the subpoenas had been issued until yesterday,” Oct. 14.

Confict with constitutional precedent

On top of that, the subpoenas conflict with 213 years of established constitutional precedent. They clearly violate the First Amendment’s guarantees of both religious liberty and free speech.

Even the Internal Revenue Service—the government agency that most often weighs in on the nature of political speech among religious groups and nonprofits—follows policies that favor the pastors. While the IRS may revoke tax-exemption if a pastor endorses specific political candidates from the pulpit, it specifically affirms a religious leader’s right to speak to public issues.

So, if the pastors preached on homosexuality or the ordinance, they were well within their rights. (The mayor may not know this, however. Religion Dispatches reported Parker tweeted to the contrary around midnight Oct. 15: “If the 5 pastors used pulpits for politics, their sermons are fair game. Were instructions given on filling out anti-HERO petition?-A.”)

Even if Houston’s city leaders drop the subpoenas, this episode is disturbing for at least two reasons.

First, and foremost, it is an egregious attempt to usurp religious liberty.

If the subpoenaed pastors received a dollar for every time the phrase “government overreach” has been spoken or written regarding this case, they could pay all their legal bills. From the extreme left, right and every point in-between, Americans agree the Houston mayor’s office tried to punish preachers for political views based upon sincerely held religious beliefs.

We instinctively, historically and constitutionally know that’s plain wrong.

Second, and even more grievously, the subpoenas fed the fears of conspiracy theorists and fanned the flames of our ongoing culture wars.

Encourages paranoia

This is the kind of action that convinces conservative U.S. Christians they are persecuted. You can be assured this story will go viral and make the rounds of emails—updated to appear current—for years and years. It will be the new “Madalyn Murray O’Hair is trying to remove religion from the airwaves” rumor for coming decades. Those subpoenas are worth millions of dollars to anti-government activists and political strategists who grow rich and powerful by scaring naïve, well-meaning and otherwise gullible citizens into supporting their divisive causes.

So, for the moment, Americans across the political and theological spectrum are drawn together in agreement the Houston subpoenas are wrong. But in the long run, the fear they spread will push us apart.

(EDITOR’S NOTE: The fourth paragraph was revised Oct. 17 to reflect that one controversial section of the Houston Equal Rights Ordinance was stricken from the final law).