This week the city of Houston and its Mayor, Annise Parker, stepped up their assault on the rights and freedoms of the city’s inhabitants. In a heavy-handed move aimed at silencing dissent from its new equal-rights ordinance, the city subpoenaed sermons given by pastors who opposed the law on religious grounds. The city suspects that these pastors have made inflammatory remarks regarding both LGBT issues and the city’s openly lesbian mayor, and it is likely going to scour the sermons to find ways to publicly shame the pastors who made them.
The controversial equal-rights ordinance includes provisions that would allow people to use bathrooms that align with their gender preference. Transgender people will be able to file a discrimination complaint against any business owner who denies them access to the bathroom of their choice. The law has been a cause for concern for pastors from Southern Baptist, non-denominational, and other churches that fear their First Amendment right to speak freely about homosexuality would be threatened. Little did they know that the city would launch a direct attack on their free speech - and their right to religious freedom - by issuing subpoenas for any sermons that mention the ordinance, homosexuality, gender identity or Mayor Annise Parker.
The equal-rights ordinance, which is unpopular among many Houstonians, garnered opposition in the form of a petition signed by over 50,000 city residents in August - well over the 17,269 signature threshold needed to get a referendum on the ballot. The city, true to form, ignored the petition claiming that it contained “irregularities.” Opponents of the ordinance filed a lawsuit against the city. The city retaliated by issuing the subpoenas against the pastors, even though none of the pastors who received subpoenas are involved in the lawsuit.
The city’s subpoenas of the sermons - in addition to being unwise, disrespectful to religion, and abusive - are also unconstitutional because they are overly broad and violate the pastor’s First Amendment rights. A pastor’s proclamations from the pulpit are protected speech, and only subject to limited scrutiny if the church claims a tax exemption. To maintain federal tax exempt status as a 501(c) charity, the church must not substantially engage in “carrying on propaganda, or otherwise attempting, to influence legislation… [or participating in] any political campaign on behalf of (or in opposition to) any candidate for public office.” (set forth in 26 U.S.C. § 501). These subpoenas, however, are not being issued by the IRS or the State of Texas, the two levels of government that actually provide tax exemptions to the churches. Instead, the city of Houston, which has no authority and no legitimate grounds to request the sermons, is demanding the documents.
Also, the subpoenas do not request only information on political activities; they order the pastors to reveal any sermons that refer to homosexuality or gender identity. This strikes directly at the First Amendment’s protections of free speech and separation of church and state. There is no reason why information regarding the church’s stance on homosexuality would be useful to the city at a trial regarding the ballot referendum. The city is attempting to throw its weight around in order to intimidate pastors whose views do not align with the political establishment. Mayor Parker, the city council, and the LGBT community should respect the rights of Houston churches to preach the doctrine they believe is correct and to engage in the free exercise of their faith.
*Nolan Oldham is a J.D. Candidate in the class of 2016 at New York University School of Law, and a Staff Editor for the N.Y.U. Journal of Law & Liberty. Nolan is from Houston, TX.