Bench Memos

Houston’s Harassment of Pastors

In an extraordinary step, the city of Houston is seeking to compel pastors to provide all documents in their possession—including all sermons as well as “emails, instant messages, text messages,” and other electronic data—relating in any way to Houston’s recently enacted “equal rights” ordinance. (The full text of one of Houston’s subpoenas is available here.) Among other things, that ordinance entitles men who think they’re women to use women’s restrooms.

After the ordinance was enacted, voters exercised their right to seek to repeal the ordinance through a referendum. They obtained the signatures for a referendum petition and presented it to the city secretary, who certified it as valid. But Houston’s mayor and city attorney rejected the petition. Voters then sued to challenge the rejection. It’s in this action—to which the pastors are not parties—that Houston is serving the subpoenas on the pastors.

The Houston subpoenas are grossly overbroad, for the reasons that the Alliance Defending Freedom, counsel to the pastors, spells out in its motion to quash (and that Eugene Volokh addresses in point 2 of his post). As ADF puts it:

[I]t appears they were designed to punish the Nonparty Pastors for being part of the coalition that invoked the City Charter’s referendum provision, and discourage them and other citizens from ever doing so again. The message is clear: oppose the decisions of city government, and drown in unwarranted, burdensome discovery requests.

Two other factors appear to be at work. The first is the clash between the transgender ideology and religious liberty. Mark Steyn sums it up aptly:

When the transgendered bathroom ordinance runs up against the First Amendment, it’s the First Amendment that gets left for roadkill.

The second factor, I’d suggest, is the scorched-earth litigation strategy of so many modern law firms. Geoffrey L. Harrison, Alex Kaplan, and Kristen Schlemmer of the law firm of Susman Godfrey are representing the city of Houston, and they seem not to have given a moment of careful thought to the First Amendment implications in this case of the sort of bullying discovery that they and other lawyers routinely engage in. I would say that they are a disgrace to the legal profession, but I fear that they are all too typical of it.

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