Why the City of Houston wanted the sermons of five Christian pastors

The City of Houston ignited a free-speech controversy by seeking the sermons of five evangelical Christian pastors as part of a legal battle over a new anti-gay discrimination ordinance.  On Wednesday, the mayor scaled back the scope of the subpoenas. 

The City of Houston ignited a First Amendment free-speech debate by issuing subpoenas to evangelical Christian leaders demanding they turn over their sermons – and all other communications – regarding a new city ordinance providing protections to the LGBT community.

But on Wednesday, the Houston Mayor Annise Parker apparently backpedaled. 

"Mayor Parker agrees with those who are concerned about the city legal department’s subpoenas for pastor’s sermons,” according to an email from Janice Evans, chief policy officer for the City of Houston. “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.  Both agree the original documents were overly broad.  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.”

Pastor Dave Welch, one of five Houston pastors who received a subpoena despite not being involved the HERO lawsuit against the city, said in a phone interview shortly after mayor's statement was issued: “What they did by issuing these subpoenas was to punish any pastor in the city of Houston who participated in gathering signatures against the HERO ordinance,”

Welch, who heads the Houston Area Pastor Council, called even a downsized version of the subpoena “an effort to both punish and intimidate those who dared to step-up and oppose this city council.”

The recently enacted HERO was championed by Mayor Parker, the nation’s first openly lesbian mayor of a major American city.

The city ordinance passed in June and bans anti-gay discrimination among businesses that serve the public, private employers, in housing and in city employment and city contracting. The ordinance exempted religious institutions.

But the ordinance passage was followed by a lawsuit against the city by people identified as Christians in the media. The lawsuit sought a court injunction forcing the city to suspend the HERO ordinance and place a repeal on the ballot in November. City attorneys responded to the lawsuit on Oct. 10 by issuing subpoenas to five local pastors.

And that's when a local battle over discrimination suddenly became a First Amendment cause célèbre.

“City council members are supposed to be public servants, not Big Brother overlords who won’t tolerate dissent or challenge,” said Erik Stanley of the group Alliance Defending Freedom, which now represents the pastors, on the group’s website.  “In this case the city has embarked upon a witch hunt and we’re asking the court to put a stop to it.”

Part of the evangelical outcry now is the fact that the five pastors named in the subpoena have no involvement in the lawsuit brought against the city – the city attorney issued the subpoena during the legal discovery process, according to Religious News Service (RNS) and other news outlets.

Therefore it appears to some that these pastors have been singled-out because they allegedly fought the passage of the HERO ordinance from the pulpit.

The city attorney's office has not responded to requests for comment.

However, the subpoena was posted online by the attorneys at The Alliance Defending Freedom who represent the pastors. 

“The subpoenas were issued to pastors who have been involved in the political campaign to organize a repeal of Houston’s new equal rights ordinance,” said Ms. Evans, chief policy officer to the mayor, in a statement to the Houston Chronicle. “It is part of the discovery process in a lawsuit brought by opponents of the ordinance, a group that is tied to the pastors who have received the subpoenas.”

A central point of contention in the new ordinance is that if transgender people are barred access to a restroom, they may file a discrimination complaint.

The City of Houston subpoena specifically demanded the pastors turn over any all communications of any kind, written or electronic including but not limited to: sermons, emails, studies, petition circulars, training materials and any other related documents, photos and petition drafts, according to the subpoena.

The subpoena also demands, “All communications with Pastor Dave Welch or anyone else at or associated with the Houston Area Pastor Council referring or relating to HERO, restroom access in connection with HERO, the Petition, or this litigation.”

Welch has become known for his conservative views and allegedly calling upon his followers to invoke “Imprecatory prayers” that “ask God to burden, curse or even destroy wicked individuals and institutions,” against the LGBT community and its supporters, according to TFN (Texas Freedom Network)

Those failing to comply will with the subpoena will be held in contempt of court.

But the city's lawyers will face a high bar for proving the information in the sermons is essential to their case, Charles Rhodes, a South Texas College of Law professor, told the Houston Chronicle. The pastors are not named parties in the lawsuit, and the [US Constitution's First Amendment] "Church Autonomy Doctrine" offers fairly broad protections for internal church deliberations, he said.