Bench Memos

More on Houston’s Harassment of Pastors

Houston mayor Annise Parker asserts that this New York article on Houston’s subpoenas to pastors “got it right.” So let’s take a look at what the article contends.

1. The article concedes that the “upset pastors and their defenders may in fact be right about the subpoenas being overbroad.” But it tries to defend Parker by saying, “The mayor agrees, if only they’d asked her.”

It’s ridiculous to contend that the pastors, having received a subpoena from the City of Houston, should have asked Parker for her view of the subpoenas. Had she been doing her job responsibly, Parker would have reviewed and objected to the subpoenas before they were sent out.

Further, Parker’s initial public response was to approve of the subpoenas:

If the 5 pastors used pulpits for politics, their sermons are fair game. Were instructions given on filling out anti-HERO [ordinance] petition?

She has only retreated from that position in the wake of public criticism.

Parker’s position also appears lawless. She has no business objecting to pastors using their “pulpits for politics” and treating them as targets (“fair game”) if they do. Apart from the fact that “politics” is a nebulous term whose definition should not be left to hostile politicians, pastors have the same First Amendment rights that everyone else has, and they may use their pulpits for whatever lawful purposes they choose—yes, including politics​.

If a pastor’s church is a 501(c)(3) organization under federal tax law, federal guidance bars (or at least purport to bar) the church from “directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” But it says nothing against giving instructions on a referendum petition. And even if it did, that would be a matter between the IRS and the church, not any business of the mayor’s.

2. The article contends that the pastors’ “complaints make it sound like the pastors are about to be tried for hate speech using the new law, which is far from the case.” No, the pastors’ complaints simply mean that they object to the baseless and harassing fishing expedition (or, given Parker’s “fair game” comment, perhaps it’s a hunting expedition) that the City of Houston is threatening to undertake—and to the chilling effect that expedition would have on citizens who exercise their legal rights to stand up against city officials who abuse their power.

3. The article claims that a narrower version of the subpoenas would be justified by the city’s interest in discovering “what kinds of instructions the pastors gave out with respect to collecting petition signatures, and whether what they said agrees with what they’re arguing in court while appealing the referendum.” I have no idea what this is supposed to mean.

For starters, the relevant legal question under the provisions of the Houston city charter that govern a referendum petition would seem limited to whether the petition received (as the city secretary certified that it did) a sufficient number of valid signatures. If someone can explain how the “kinds of instructions the pastors gave out” bears on this matter, I’d be interested.

Further, the pastors aren’t parties to the pending litigation, so the article’s assertion that the subpoenas might help to see “whether what they said agrees with what they’re arguing in court” makes no sense.

Mayor Parker, it’s time to respect the First Amendment and to repudiate the subpoenas entirely.

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