‘Render to Caesar the things that are Caesar’s, and to God the things that are God’s.” Unless you’re in Houston, Texas, in which case you had best render everything to Mayor Annise Parker — or else.
Earlier this year Parker, a Democrat, spearheaded the passage of an “Equal Rights Ordinance” (ERO) that added “sexual orientation” and “gender identity” to the city’s non-discrimination provision, which includes, among other things, “public accommodations” — for example, restrooms. Citizens, among them church leaders, balked. They launched a referendum petition that, with the requisite 17,269 signatures, would require the city council to repeal the ERO, or to put the measure up for a vote. They obtained 55,000 signatures. The city secretary, who has sole responsibility for certifying such petitions, signed off.
Enter Houston city attorney David Feldman, who, with no legal authority, disqualified 38,000 signatures. Names that were printed, rather than written in cursive, were discarded; names that were written in cursive were considered illegible — just enough names to get the petition below the 17,000-signature requirement, at which point the city council and Mayor Parker rejected it. And several citizens sued.
But the city’s shenanigans had only just begun. Unsatisfied with violating the rights of the plaintiffs in the lawsuit, the City of Houston has subpoenaed privileged communications of five pastors (none of them party to the lawsuit) who helped to organize the petition drive. Among other information, the city is requesting communications between the pastors and their attorneys pertaining to the ERO lawsuit, communications between the pastors and their congregants, and even the pastors’ sermons.
To understand the full extent of the city’s overreach, it is worth quoting the actual subpoena: The request for sermons, for example, seeks “all speeches, presentations, or sermons related to H[ouston] ERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.” “Or in your possession” — suddenly a Billy Graham sermon is the legal equivalent of child pornography.
The inclusion of material that refers to Annise Parker makes clear just what is afoot: “political retribution,” says Erik Stanley, senior legal counsel with Alliance Defending Freedom, which is representing the five pastors. ADF has filed a motion to quash the subpoenas, and is now awaiting the city’s response.
What is the city hoping to accomplish with the subpoenas? Even Stanley cannot figure it out, because any information that is likely to turn up would be irrelevant to the pertinent legal matter — which is that the mayor expressly violated the city charter by refusing to heed a certified referendum petition. It seems clear, says Stanley, that “the City of Houston is pulling out all the stops to make sure this issue never gets in front of the voters.”
Because if it did, and Houstonians voted it down, the blow to Parker would be significant. She has made the ERO the centerpiece of her administration, which has vigorously supported the LGBT agenda. Parker, who took office in 2010, has made no secret of her own homosexuality. As an at-large city councilmember, she was Houston’s first openly gay elected official. She married her longtime girlfriend in California earlier this year.
The brazenness of the whole effort, though, is really quite stunning. The communications sought are protected under a whole host of privileges, most readily the First Amendment. But the City of Houston’s crack legal squad has even subpoenaed communications obviously protected by attorney-client privilege. “It is a fishing expedition,” says Stanley. And the Supreme Court has made clear that the discovery process of a trial cannot be used to cast about wantonly for material that might, on an off-chance, be helpful to one’s case.
The city’s tactics are transparent — and appalling. Private citizens’ right to petition their local government for a redress of grievances was violated by the mayor and her minions. And when that was not enough to silence the dissenters, the city sicced its legal team on the pastors who, fully protected by the First Amendment, helped organize them and promote their cause.
Does Parker think this gambit will succeed? If so, she must not be well acquainted with her state’s history. When it comes to defending their rights, Texans are not an easygoing bunch. Thankfully.
— Ian Tuttle is a William F. Buckley Jr. Fellow at the National Review Institute.