Recently in Houston, news broke that Mayor Parker's pro bono outside counsel subpoenaed
five area pastors' sermon notes (among other things) on topics related to HERO (the “Houston
equal Rights Ordinance”), gender identity, homosexuality, and Mayor Parker. A swift
outcry soon erupted from the Christian sphere, decrying the subpoenas as an abuse
of governmental authority and serious threat to religious liberty. I covered that topic here.
The reaction from prominent Christians, such as Senator Ted Cruz, was swift and stern.
In response, the Mayor distanced herself from her original position that "if the pastors used
pulpits for politics, their sermons are fair game." But it wasn't much distance. City Attorney
David Feldman said that, while the original requests were overly broad in their scope, if the
pastors engaged in political speech from the pulpit, it would not be protected.
On Friday, October 17, however, the City filed a response that revised the scope of the original
subpoenas. But the revision didn’t revise much. Here's what the response says:
“Request No. 12 originally read:
All speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker,
homosexuals, or gender identity prepared by, delivered by, revised by, or approved by you or in
Defendants [the City of Houston] hereby revise Request No. 12 as follows:
All speeches or presentations related to HERO or the Petition prepared by, delivered by, revised
by, or approved by you or in your possession.”
What the response also omits is that Request No. 12 represents one request out of seventeen
total document requests. Left untouched are requests like these:
“1. All documents or communications to, from, CCing, BCCing, or forwarded to you,
or otherwise in your possession, relating to or referring to any of the following in connection
in any way with HERO, the Petition:…the topics of equal rights, civil rights, homosexuality,
or gender identity; and
4. All communications with members of your congregation regarding
HERO or the Petition.”In other words, the City hasn't backed off from its original demands.
David Feldman issued a revision that didn't really revise anything. Instead of backing off,
the City is doubling down on its position with political savvy.
From a legal standpoint, it will be interesting to see how the judge rules on the pastors' Motion
to Quash. I suspect he will quash at least some of the more onerous requests, if not most of
them entirely. The requests are still so overly broad, burdensome, and harassing
(not to mention unrelated to the underlying issues of the litigation), that I don't think they
will survive a challenge under the Texas Rules of Civil Procedure. The judge likely will not
entertain a First Amendment argument on the issue. But if the Court did address the First
Amendment, I think the pastors win under current Supreme Court precedent. The requests
would have a chilling effect on religious participation, and there are numerous other ways to
get the requested information—they are not drafted narrowly enough to warrant the intrusion,
especially for a non-party.
Culturally, this incident says much more about our beliefs and assumptions as a society. If we
boil the case down to its essence, we have a group of people who sought to petition their
government for a redress of grievances. In response, that same government set out to harass
and bully them into submission through the litigation process—a burdensome undertaking. The
right of the people to "petition the Government for a redress of grievances" is fundamental to a
self-governing society. The plaintiffs didn't even make it past the petition part; it was thrown out
by the same government that was established to protect their right to petition it.
New information from the deposition testimony of City Secretary Anna Russell confirms that
City Attorney David Feldman improperly inserted himself into the signature verification process
after Ms. Russell had certified the proper number of signatures. Ms. Russell was even prepared
to issue a statement that the petition had been successful, until Mayor Parker and
David Feldman called her into a last-minute meeting, where she was instructed to add a
paragraph to the end of her statement, stating that the petition had failed. This is improper
government coercion and dirty politics at its finest. Deep down, however, it reveals a
fundamental misunderstanding of what government is and what it ought to do.
At the core, we are facing competing worldviews on the nature and purpose of government.
Whereas, at America's founding, we established a society in which the government was
accountable to the people, the City of Houston has repeatedly shown that it believes the people
are accountable to their government, at any cost. This type of thinking is anathema to a free
society. Moreover, the way in which the Mayor and City Attorney handled the petition
verification process is highly suspect—meaning I suspect foul play. Given the City Secretary’s
deposition testimony, David Feldman and Mayor Parker’s eleventh-hour meeting with
Ms. Russell is an abuse of executive power that should cause thoughtful Christians to have
serious reservations about the integrity of the Mayor’s Office.
Ultimately, I don't know how this case will turn out. I hope the City loses and the HERO
ordinance goes to the ballot. But what I do know is that this case has exposed the underlying
political worldviews that are competing for dominance in Houston as we speak. The City’s
leaders are playing hardball, but what does the Bible have to say about the characteristics we
should expect from our leaders? The Bible counsels that we ought to rejoice in leaders who fear
God, love truth, and hate envy (Exodus 18:21). And “when the righteous increase, the people
rejoice, but when the wicked rule, the people groan” (Prov. 29:2).
Casting the political sensitivity of this case aside, it should serve as a wakeup call that this is
an ongoing ideological battle. Is the government accountable to the people? Or are the people
accountable to the government? Do we love truth? Or do we love to win? Your beliefs about the
nature of man will influence your answer to these questions. And your answer to these
questions will largely inform your response to similar situations in the future. Think, pray, and
then vote for leaders who fear God, love truth, and hate envy. Then the people will rejoice.
Kyle Bryant is an attorney (and urban design enthusiast) with Bryant Law in Houston, Texas. His practice focuses on civil litigation and family law issues. He is also an active member at Sojourn Heights Church in The Heights neighborhood of Houston. He can be reached at email@example.com