City Not Backing Off On ‘the Houston 5’

By Joseph La Rue | October 17, 2014 | 11:21am EDT

As the saying goes, “Everything’s bigger in Texas.” Houston has taken that to new heights as of late by inviting Big Brother into the sanctuaries of local churches and demanding that pastors turn over their sermons, conversations, e-mails and even text messages for government inspection.

The pastors, dubbed by some as “the Houston 5,” were served subpoenas by the city’s attorneys for their sermons and private communications with their church members. These pastors were not involved in any lawsuit. They did not sue anybody, nor were they sued. The city of Houston, however, was sued – by a group of citizens who collected more than a sufficient number of signatures for a referendum petition that would place on the ballot a controversial bill passed by the city council that allows anyone to use a bathroom reserved for the opposite sex.

Even though those citizens collected more than three times the necessary signatures, the mayor and city attorney unlawfully rejected the petitions after the city secretary approved them. The city then came after, not only those citizens, but also these pastors, who have nothing to do with the lawsuit, but who had publicly opposed the bill.

The city recently issued some statements that appear to be conciliatory on the surface, and some media outlets are reporting that the city is “backing down.” So far, it is simply not true. Yes, Houston Mayor Annise Parker has described in the press revised subpoenas that will supposedly be served on the Houston pastors soon. She misses the point. The only solution to this problem is to eliminate the subpoenas, not revise them. There is no sound legal basis for them – at all.

The mayor publicly tweeted that the pastors’ sermons are “fair game” because the pastors spoke from the pulpit about the city’s bill. That is wrong in more ways than one. Under the rules of evidence, subpoenas must be tailored to uncover relevant evidence. And what pastors may have said from the pulpit – or even to others via e-mail or text messages – is not relevant to whether a sufficient number of people signed a referendum petition.

Contrary to what the mayor has publicly stated, the problem with the subpoenas is not “one word,” that is, “sermons.” The problem is far bigger. In addition to sermons, the subpoenas seek the pastors’ communications on various moral and social issues. The subpoenas may also force the pastors to turn over the financial information of their church members and the churches the pastors serve. So, even if the city were to say that the pastors do not have to turn over their sermons, that would not at all resolve the problem. None of these other communications and financial data have anything to do with whether a sufficient number of people signed the petition to place the city’s “bathroom bill” on the ballot.

Taking a step back, though, the city has not yet said that it does not want the pastors’ sermons. Rather, now the mayor says “the goal of the subpoenas” is “to find out if there were specific instructions given on how the petitions should be filled out.” So, the city apparently wants sermons or any other communications related to instructions pastors provided for gathering signatures to oppose the city’s bill. But again, the only issue in the lawsuit is whether enough people signed the petitions. The city does not need – nor can it legitimately ask for – sermons, e-mails, text messages and other communications of pastors, who are not even involved in the lawsuit to figure that out. It only needs to count the signatures on the petitions.

If the city really wants to “back down,” it needs to stop going after these pastors immediately. They have merely voiced their opinion on a law they believe to be unjust. And for engaging in that most quintessential and protected American freedom, their government is targeting them. The city should right this wrong and leave “the Houston 5” alone.

Joseph La Rue is legal counsel with Alliance Defending Freedom, which represents pastors subpoenaed by the city of Houston in Woodfill v. Parker.

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