Conservative media outlets, led by Fox News, are attacking the city of Houston for subpoenaing a number of local pastors who were part of the right-wing opposition to the city's LGBT non-discrimination ordinance that is suing the city now that the anti-discrimination law is in effect. But their claims that religious liberty should keep the pastors' public addresses secret ignores the fact that subpoenas of parties relevant to a lawsuit are a typical part of the legal discovery process.
Conservative media reacted with outrage to reports that the city of Houston had subpoenaed five local pastors requesting a variety of documents related to their involvement in the legal battle over the city's recently passed Equal Rights Ordinance (HERO), which prohibits discrimination against LGBT residents. The subpoenas included a request for “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity.”
On October 13, the anti-gay legal group Alliance Defending Freedom (ADF) filed a motion to quash the subpoenas, calling them “overbroad” and “unduly burdensome.” The motion was reported by Fox News' Todd Starnes, who accused the city of Houston of trying to “silence American pastors” and “deconstruct religious liberty” :
I predicted that the government would one day try to silence American pastors. I warned that under the guise of “tolerance and diversity” elected officials would attempt to deconstruct religious liberty.
Sadly, that day arrived sooner than even I expected.
Now is the time for pastors and people of faith to take a stand. We must rise up and reject this despicable strong-arm attack on religious liberty. We cannot allow ministers to be intimidated by government thugs.
Starnes' apoplectic report triggered a wave of conservative misinformation about the subpoenas, with commentators accusing the city government of engaging in unconstitutional bullying and anti-religious harassment. Fox News has covered the story in similarly misleading segments on Fox & Friends, Hannity, and The Kelly File:
But the facts of the case - and normal legal procedure -- don't support right-wing claims of religious persecution:
The Subpoenas Are In Response To A Lawsuit Filed By HERO's Opponents. The subpoenas are part of the discovery phase of a lawsuit filed by HERO's opponents after they unsuccessfully tried to gather signatures to repeal the ordinance. The lawsuit claims that the City Attorney “wrongly determined that they had not gathered enough valid signatures” to qualify for a vote to repeal HERO. As one conservative commentator noted: “This is basic court procedure. But the headlines make it sound like a surprise attack by leftists advancing their agenda on unsuspecting Christians.”
Sermons Are Not Immune To Being Subpoenaed. As The Washington Post's Eugene Volokh explained, precedent suggests that information typically protected by the First Amendment can still be subpoenaed if it's relevant to a legal investigation. This is especially true in situations where sermons were recorded and distributed for public use.
The Subpoenas Are Meant To Gather Information About Improper Church Behavior. The goal of the subpoenas is to gather information to support the city's case that HERO opponents behaved inappropriately when gathering signatures to repeal HERO. City Attorney David Feldman cited a training video showing one of the subpoenaed pastors explain the rules for signature gathering at a church presentation, pointing out that such “political speech” is fair game and might support the city's case for dismissing certain signatures.
Broad Subpoena Requests Aren't Unusual. It's not unusual for attorneys to request large amounts of information of plaintiffs and their associates in the discovery process, even if they expect those requests to be limited. Christian conservative author Dr. Joel McDurmon, who opposes the city's non-discrimination ordinance, explains:
[W]hat happens when you file a lawsuit? You open up yourself and your relevant friends to discovery. Are the correspondences between these pastors and the Christian parties who filed the suit relevant to the case? It is possible that a judge could determine this is the case. That is what this subpoena is about.
And as any savvy lawyer would do, the defendants' attorneys cast the largest net possible in requesting information. In my opinion, it is unnecessarily broad. In my opinion, the vast nature of demands violates several of the checks and precedents built into the court's rules for discovery... But that's part of what's good about it. Those checks are there for a reason. Let's be calm and file a demand that they be followed first before we cry end of the world. And sure enough, ADF's motion to quash, or at least modify the subpoena, cites these very principles and checks.
This is not an attack on all Houston area pastors, and no impression should be allowed in that regard. It is a routine court procedure, not even final yet, against a handful a pastors--and only because they are implicated in a court case filed. [emphasis added]
The City Defends The Need For Information, Concedes The Subpoenas Could Be Narrower. In response to the outrage caused by conservative reporting about the subpoenas, Mayor Parker and Feldman admitted to reporters during an October 15 press conference that they found the wording of the subpoenas to be “overly broad” :
“Though Feldman stood behind the subpoena in an interview Tuesday, he and Parker said during the Mayor's weekly press conference Wednesday that the wording was problematic. Feldman is monitoring the case, he said, but had not seen the subpoena written by outside counsel working pro-bono for the city until this week. Parker said she also did not know about the request until this week. There's no question the wording was overly broad,” [Parker] said. “But I also think there was some misinterpretation on the other side.”
“I wouldn't have worded it that way myself,” Feldman said of the request. “It's unfortunate that it has been construed as some effort to infringe upon religious beliefs.”
The debate over Houston's non-discrimination ordinance was riddled with conservative misinformation, including the myth that the measure would infringe on religious liberty. Now that the measure has passed, conservative media outlets are eager for evidence that their absurd horror stories are coming true. The city's broad subpoenas may be easy targets for right-wing spin, but the boring reality of civil procedure is much less unusual than conservative media outlets would have their audiences believe.