Houston Mayor Withdraws Unconstitutional Subpoenas; Persists in Unconstitutional Violation of City Charter

Good-ish news:

The city of Houston will withdraw its controversial subpoenas of five pastors tied to a lawsuit over the city’s equal rights ordinance, Mayor Annise Parker announced at a news conference Wednesday.

Houston’s mayor sparked national controversy when her legal team demanded from five local pastors “all speeches, presentations, or sermons related to [Houston Equal Rights Ordinance], the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.” The subpoena also covered, among other things, communications between the pastors and their congregants (including Facebook messages and text messages) that pertained to homosexuality, and between the pastors and their attorneys.

Parker’s decision to withdraw the subpoenas is, of course, a positive development — but it should hardly be construed as a victory.

First, here is Parker’s reasoning, per the Houston Chronicle:

Parker said she was persuaded in part by the demeanor of the clergymen she met with Tuesday, saying they were concerned not about the ordinance or politics but about the subpoenas’ impact on the ongoing national discussion of religious freedoms.

“That was the most persuasive argument, because to me it was, ‘What is the goal of the subpoenas?’ The goal of the subpoenas is to defend against a lawsuit, and not to provoke a public debate,” Parker said. “I don’t want to have a national debate about freedom of religion when my whole purpose is to defend a strong and wonderful and appropriate city ordinance against local attack, and by taking this step today we remove that discussion about freedom of religion.”

Perhaps that is Parker’s heartfelt mea culpa; if so, she has a particular flair for saying it in a manner that offers not the slightest hint of an apology. There was never any “discussion about freedom of religion” going on in Houston; there was never anything to discuss. Parker’s subpoenas trampled multiple people’s First Amendment rights, period, case closed. Parker’s explanation for withdrawing the subpoenas sounds more like the expression of her exasperation at having become a target of national scorn. Toss these subpoenas, and maybe weirdos will stop sending her Bibles. That hardly sounds like repentance for egregious constitutional malpractice.

Add to this the fact that Parker removed mention of “sermons” from the subpoenas last week. So she recognizes it is inappropriate to request homilies, but private Facebook conversations and communications protected by attorney-client privilege are fair game? Parker did not think it was wrong one week ago to request private communications that might have mentioned “Mayor Annise Parker”?

But let’s say that Mayor Parker is just torn up inside about what she did, and, golly, she is super-duper sorry. What about that lawsuit?

That is the third problem: The lawsuit from which the subpoena kerfuffle extended was, itself, brought on by Parker’s express violation of Houston’s city charter. As I wrote earlier this month, 55,000 Houstonians signed a referendum petition to force the city council to repeal the Equal Rights Ordinance it passed in the summer (which added “sexual orientation” and “gender identity” to the city’s non-discrimination provisions), or to put the measure up for a citywide plebiscite. The petition was certified by the city secretary, who has sole authority for certifying referendum petitions under the city’s charter. But city attorney David Feldman then insinuated himself into the process and invalidated some 38,000 signatures, bringing it below the 17,000-signature threshold, at which point Parker and the city council refused to heed the petition. So several citizens sued.

What is crucial to keep in mind when considering this whole episode is that the subpoenas were only an additional infraction, piled atop Parker’s refusal to heed the charter she swore to uphold. Annise Parker did not violate the rights of only five pastors. She has trampled the rights of 50,000-plus of her own citizens.