News dropped on Tuesday that pastors’ sermons had been subpoenaed in the ongoing legal maneuvering over the city of Houston’s equal rights ordinance (HERO), which includes prohibitions against discriminating on the basis of sexual orientation and gender identity:
Opponents of the equal rights ordinance are hoping to force a repeal referendum when they get their day in court in January, claiming City Attorney David Feldman wrongly determined they had not gathered enough valid signatures to qualify for the ballot. City attorneys issued subpoenas last month during the case’s discovery phase, seeking, among other communications, “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”
To add to the story, Mayor Annise Parker is openly lesbian – creating an irresistible opportunity for the usual suspects. Fox News hack Todd Starnes declares that, if pastors are arrested for refusing to obey the subpoenas, then “Christians across America should be willing to descend en masse upon Houston and join these brave men of God behind bars.” Dreher is having his usual cow. The issue is a little more complicated, though:
When the city rejected the petition on the ground that the signatures were invalid, some opponents of HERO—not the pastors themselves—challenged the city’s decision in court. The city issued the subpoenas in connection with that litigation.
The theory, as I understand it, is that because these pastors helped organize the petition drive and hosted meetings, the pastors’ statements about the petition are important. I guess the idea is that the pastors may have said something that induced phony signatures … So when the city says it would like to know what the pastors may have said about the petition drive itself, that’s not a completely untenable position, given the freewheeling rules of American pretrial litigation.
Still, the subpoena is disturbing to me – and way too broad, as Eugene Volokh notes. But the story falls a little flat because, well, the mayor herself claims she first heard about the subpoenas yesterday and agrees with the critics. Katie Zavadski investigated and found out the following:
The subpoenas were sent by outside attorneys working for the city pro bono. They were looking into what instructions pastors gave out to those collecting signatures for a referendum on the non-discrimination law. (What exactly the pastors said, and what the collectors knew about the rules, is one of the key issues in pending litigation around whether opponents of the law gathered enough signatures for a referendum.)
“There’s no question, the wording was overly broad. But I also think there was some deliberate misinterpretation on the other side,” Parker said at a press conference Wednesday. “The goal is to find out if there were specific instructions given on how the petitions should be accurately filled out. It’s not about, ‘What did you preach on last Sunday?'”
Katie also notes that the mayor’s office confirmed via email “that the city will narrow the scope of inquiry into the pastors’ communications to more directly target HERO petitions.” Which is a relief.
Update from a helpful reader:
I’m an attorney who does civil litigation, so subpoenas like this are very familiar to me. One important point is that the City has no ability to enforce these subpoenas itself. Any party in civil litigation can issue a subpoena on its own and without court permission. If the people who receive the subpoena think it is too broad, they can object, and the party who issued it then has to convince the judge in the litigation that the subpoena is appropriate.
Also, the typical process for dealing with an issue like this is that the person (or their attorney) who receives a subpoena would call the attorney who issued it, express their concern, and the two sides would try to reach a mutually agreeable compromise. Such “meet and confer” sessions are routine in civil litigation, and would be required before the issuing party could ask the judge to enforce the subpoena.
Thus, there are very reasonable safeguards in place against abuse.
The Dish 