The Corner

Does the First Amendment Apply in Houston?

Attorneys for the City of Houston have subpoenaed the sermons of pastors who belong to a group of clergy and others opposed to an ordinance recently enacted by the city. The ordinance prohibits discrimination on the basis of, among other things, sexual orientation and trans-gendered status.

The Houston Chronicle reports that opponents of the ordinance collected more than enough signatures for a petition to place a referendum repealing the ordinance on the ballot, but the city rejected the petition, maintaining a number of the signatures were invalid. The pastors, in turn, sued the city.

As part of the lawsuit, the city’s attorneys issued subpoenas to the pastors seeking all speeches, presentations, or sermons related to the ordinance, the petition, the mayor of Houston (the leading proponent of the ordinance), homosexuality, or gender identity prepared, delivered, or approved by the pastor. The subpoenas went not just to pastors who were party to the lawsuit, but also to those part of a 400-member religious coalition supporting the repeal petition.

As reported, this is astonishing. Setting aside the merits of the ordinance and the petition, the subpoena is overbroad and impinges on First Amendment rights. The city maintains that it is seeking evidence that the churches were engaged in electioneering in violation of their tax-exempt status. (If so, isn’t this best left to the IRS? Oh, yes. Never mind). This is unadulterated nonsense. Although the city arguably may seek sermons related to the petition, referendum, or the mayor — presuming those sermons amount to electioneering — seeking sermons related to homosexuality and gender identity unequivocally chills and intrudes upon the pastors’ First Amendment rights.

Furthermore, the subpoenas directed to pastors not part of the lawsuit appear overbroad and calculated to deter any opposition to, or criticism of, the ordinance. And Houston seems quite selective in its concern about electioneering in churches. There are no reports the city is at all interested in the overt and unabashed political appeals by Democrats that occur in black churches throughout Houston and the rest of America every election cycle.

A recent hearing before the U.S. Commission on Civil Rights indicates that the increasing tension between anti-discrimination law and religious liberty is the civil-rights issue of the next decade. Depending on how that issue is resolved, religious “freedom” could very well be subject to governmental restraints never imagined in the first two centuries of the country’s existence.

Challenges to religious liberties are multiplying rapidly. Houston is just the tip of the iceberg.

Peter Kirsanow — Peter N. Kirsanow is an attorney and a member of the United States Commission on Civil Rights.

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