Rules Are for Schmucks: The Truth about the Houston Subpoenas to Christian Pastors

Senator Ted Cruz and the rest of the Christian Right were in an uproar last week over the City of Houston’s subpoenas to several Christian pastors, requiring them to provide copies of sermons and other communications pertaining to pending litigation with the city. Calling them “a subpoena to silence prayers,” Cruz thundered, “The city of Houston has no power—no legal authority—to silence the church. Caesar has no jurisdiction over the pulpit.” The trade association for Christian broadcasters calls the subpoena an “inquisition,” the head of the Family Research Council calls it a “Soviet-style crackdown on area churches,” and even the head of the liberal Interfaith Alliance calls it “profoundly disturbing.”

Here’s what’s really going on.

Last May, the Houston City Council passed an equal rights ordinance, consolidating existing city bans on discrimination based on sex, race, age, religion and other categories and increasing protections for gay and transgender residents. Unfortunately, religious institutions are exempt from most of its provisions, but that doesn’t mean they’re not bitterly opposed to it. A coalition called “No Unequal Rights” spearheaded by local church groups like the Baptist Ministers Association of Houston formed to petition the ordinance to referendum.

In July, the pro-discrimination lobby submitted over 50,000 signatures to put the repeal of the ordinance on the ballot, which seemed like a lot when only 17,269 were needed. But upon closer examination, many of the signatures were invalid, and many of the signature collectors were not properly-qualified Houston residents–the city has this quaint idea that only people who are registered to vote in Houston ought to be involved in deciding what Houston’s laws will be. More than two-thirds of the signatures were thrown out, so the referendum will not be appearing on the ballot this fall.

[Pop trivia quiz: Which prominent American politician first won office by invalidating the nominating petitions of every one of his or her primary opponents? First commenter with the correct answer gets bragging rights for a week.]

As expected, the pro-discrimination forces didn’t like this result, so they brought a lawsuit. The City of Houston didn’t sue anybody—the people challenging the law started the fight. Once it found itself hauled into court, though, the City of Houston “lawyered up.” Naturally, one of the first things its lawyers wanted to do was to learn more about how these signatures were in fact collected, a central element of the case. Hence, the now-famous subpoena.

Is it true, as Sen. Cruz puts it, that “Caesar has no jurisdiction over the pulpit?” Of course it isn’t. Take an easy example, starting at the top: the crime of treason, defined as giving aid and comfort to enemies of the United States. We are currently at war with the Islamic State, a war we’d better win. It is entirely possible that sermons at some American Muslim mosques are treasonous – encouraging the financing and recruitment of fighters for our enemy, or even sabotage here at home. If the government has grounds to suspect such activity, should it be OK to subpoena those sermons? It better be!

Legal scholar Eugene Volokh posits another example. Suppose a church fires a clerical employee after she becomes pregnant. If there’s a record of sermons in that church indicating some bizarre biblical view that mothers should stay at home, should it be possible for the woman to subpoena those sermons in connection with her wrongful discharge complaint? Of course it should.

In Houston, it’s entirely plausible that sermons instructed petition distributors, consciously or otherwise, to do things contrary to law in gathering their names. After all, if it’s God who wants to crush equal rights for gays, why should bureaucratic red tape be allowed to bar the way? It’s hard to imagine anything more relevant to the case at hand than the instructions and encouragement that were given to signature collectors—exactly what the pastors are now trying to hide.

It is true that the lawyer who drafted the subpoena played the typical lawyer’s game of killing ants with a sledgehammer, demanding communications not only about the petition drive but anything the pastors may have said about the mayor herself. This is what lawyers do—they try to win cases by casting their nets as broadly as possible. I’ll bet my last nickel that the lawyers for the pastors have demanded, or will demand if they haven’t yet, every shred of communication pertaining even remotely to the process by which the decision was made to invalidate two-thirds of the petition signatures—all of which they should be entitled to receive.

There’s a time-honored procedure in the law relating to litigation discovery for challenging over-broad document requests that have nothing to do with the matter at hand. It is typically a straightforward matter to negotiate an arrangement between the attorneys to hone down the information demands on both sides to the truly relevant items. Normally neither side wants to be in the position of antagonizing the judge with indefensibly irrelevant demands, thus started their case off on the wrong foot.

Nevertheless, the mayor of Houston gave up the fight almost immediately, announcing on Friday that the subpoenas would be changed to withdraw the demand for sermons. But as typically happens with gutless appeasement, the opposition is simply emboldened. Now they say that the subpoenas “must be rescinded entirely,” and that every single communication authored by a man of the cloth has to be exempt from the civil discovery process. So it’s OK for the pro-discrimination Christians who sued the city to throw a punch, but not to take one.

Why? Because rules are for schmucks. God experts do what they want.