Bench Memos

Re: Houston’s Harassment of Pastors

According to the WSJ Blog, as Houston’s mayor tries to back away from the massively overbroad subpoenas,* Houston’s city attorney maintains that it’s still somehow proper to obtain the pastors’ communications (including sermons) “related to the [referendum] petition process”:

Houston City Attorney David Feldman suggested to the Houston Chronicle in a story published Tuesday [registration req’d] that the documents demanded by the city could shed light on the extent to which signature gatherers opposing the ordinance were aware of the rules governing the referendum process.

Reports the Chronicle:

Feldman said the pastors made their sermons relevant to the case by using the pulpit to do political organizing. That included encouraging congregation members to sign petitions and help gather signatures for equal rights ordinance foes, who largely take issue with the rights extended to gay and transgender residents.

The city attorney’s statements make no sense to me. First, either the signature gatherers complied with the rules or they didn’t. What they “were aware of” is irrelevant to that question. Second, I don’t see anything in the referendum rules that bars pastors from “encouraging members to sign petitions and help gather signatures.” (If I’m missing something, I invite correction.) So I don’t see how any of the pastors’ communications relating to the referendum petition process might be thought to be relevant to (or to lead to anything relevant to) anything in the ligitation.

* Update: I now see that the mayor and the city attorney are on the same wrong page. Via Twitter, Mayor Annise Parker writes“If the 5 pastors used pulpits for politics, their sermons are fair game. Were instructions given on filling out anti-[ordinance] petition?”​

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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