There has been a new clash this week in the fight over the Houston Equal Rights Ordinance (HERO), a law that would protect LGBT individuals and other targeted groups from discrimination. The latest hubbub involves the city subpoenaing five pastors for their sermons, which has prompted conservatives to claim that religious liberty is under attack and that the subpoenas are a form of intimidation.
Tony Perkins, president of the Family Research Council, was on Fox News last night claiming that Houston Mayor Annise Parker (D) is “taking a bulldozer to that wall of separation [of church and state]” and trying to “dictate what pastors preach.” Sen. Rand Paul (R-KY) tweeted that the subpoenas constitute a “march against our freedoms.” Sen. Ted Cruz (R-TX) called the subpoenas a “grotesque abuse of power.” And Texas Attorney General and gubernatorial candidate Greg Abbott (R) wrote to the Houston City Attorney that the subpoenas should be unilaterally withdrawn because they reflect “hostility to religious beliefs.”
Assessing the veracity of these claims and the epic campaign conservatives are now launching in defense of the “Houston Five” requires an examination of how opponents are challenging HERO, what facts are material to their current lawsuit, and what exactly the city is asking for in its subpoenas of the pastors.
The Houston City Council approved HERO in May with a vote of 11–6. In addition to its inclusion of LGBT protections, it was actually the city’s first nondiscrimination bill protecting any classification, including race, sex, and religion. Houston was one of the only large cities in the country with no nondiscrimination policy on the books.
HERO did not pass without a fight. Groups like Texas Values, the Alliance Defending Freedom, and the Family Research Council attacked the ordinance with anti-transgender claims that it would somehow protect predators and sex offenders. There were also threats to recall Mayor Parker and any city council member who supported it.
After the law passed, a coalition formed known as “No Unequal Rights,” spearheaded by local church groups like the Houston Area Pastor Council and Baptist Ministers Association of Houston. The anti-LGBT coalition began collecting signatures to challenge HERO with a referendum.
To qualify for the ballot, No Unequal Rights had to collect 17,269 valid signatures according to the process laid out by the city charter. In July, they submitted over 50,000 signatures for consideration.
When City Secretary Anna Russell first examined the petitions, she counted 17,846 signatures, which would have been enough for the referendum to advance. City Attorney David Feldman then analyzed whether the signature pages had been completed properly according to the city charter, including whether the circulator of the petition was a certified voter in the city and whether the circulator had signed off on each page of signatures collected. Enough of the pages were disqualified to bring the number of signatures below what was required, leading Feldman and Parker to announce that the petition effort had failed.
Opponents of the law responded by immediately filing a lawsuit against the city, demanding the referendum be placed on the ballot.
The simple argument made in the suit is that Secretary Russell certified the signatures once, and that was enough. Feldman’s actions further scrutinizing the petitions should be ignored and the referendum placed on the ballot.
As conservatives have been discussing the case, including this week, they conveniently have left out the part of the story where Russell approved Feldman’s analysis of the petitions. The suit itself disregards this, while the city argues that because Russell rubber-stamped Feldman’s conclusions, her initial certification is moot.
Thus, the case largely hinges on the validity of the signatures and the process by which they were collected. A video posted by Equality Texas shortly after the suit was filed shows Pastor David Welch, director of the Houston Area Pastor Council, training signature collectors about the very city rules that Feldman used to disqualify entire pages of signatures. The subpoenas seek to collect additional information about how pastors like Welch communicated with their congregations about the petition process.
News of the subpoenas came from the anti-LGBT Alliance Defending Freedom (ADF), who is defending the five pastors they target. ADF announced Monday that they had filed a motion to quash the subpoenas filed by the city’s attorneys.
The subpoenas targeted five pastors in Houston: David Welch, Steve Riggle, Khan Huynh, Magda Hermida, and Hernan Castano. The requests seek documents related to the funding of the petition effort, the training of petition circulators, and the messaging used to convince individuals to sign. What has particularly drawn conservative ire was the request for “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.”
Parker and Feldman have said that they only learned this week of the subpoenas, which were produced by the city’s outside counsel. They agreed that the language was “overly broad,” clarifying that they believe the suit only demands communications specifically relevant to the petition process — as opposed to sermons otherwise about LGBT issues. The city will move to narrow the scope of the subpoenas accordingly during an upcoming court hearing.
Among ADF’s primary arguments against the subpoenas is the claim that the pastors are not party to the suit against the city. Nevertheless, they were the leaders in the petition effort, which is at the core of the suit. As Feldman told KTRH this week, “We’re certainly entitled to enquire about the communications that took place in the churches regarding the ordinance and the petitions because that’s where they chose to do it,” adding, “It’s relevant to know what representations and instructions were given regarding these petitions.”
ADF also claims that the subpoenas will have a “chilling effect” on the free speech of citizens and that “the referendum process will become toxic” as a result.
Since ADF filed its motion to quash the subpoenas this week, anti-LGBT conservatives have inflated the story beyond the actual scope of the case. In particular, many have conflated the details of the suit with a conversation about whether or not church leaders are even allowed to discuss politics. Almost every organization has followed ADF’s lead in adapting “inquisition” as the new buzzword.
At Fox News, Todd Starnes accused Houston of trying to “silence American pastors.” Pastor Steve Riggle, one of the subpoena recipients, similarly told Starnes, “This is an attempt to chill pastors from speaking to the cultural issues of the day,” calling Parker a “bully.”
The Family Research Council has launched a fundraising petition in support of the pastors, suggesting, “Mayor Parker has breached the wall of separation between the state and the church” and describing her actions as an “attack on religious freedom and the freedom of speech.”
Russell D. Moore, president of the Southern Baptist Convention’s Ethics and Religious Liberty Commission, similarly called on the pastors to defy the subpoenas because “the preaching of the church of God does not belong to Caesar, and we will not hand it over to him.” A coalition of Baptist organizations has now sent a letter to Parker asking her to acknowledge that the subpoenas are “improper and unwarranted.”
Conservative commentator Erick Erickson took the fear-mongering even farther, claiming that not only is Houston trying to “publicly shame Christian pastors,” but that they’ll also “try to revoke the tax exempt status of churches.” Jody Hice, a Republican congressional candidate in Georgia, took to his radio show Thursday to suggest that Houston “may be actually trying to bring legal charges against these pastors for sharing with their congregants scriptural passages.” Meanwhile, the American Family Association warned its members that if the pastors refuse to comply, Parker has personally “threatened to charge them with contempt of court and possible fines or jail time.”
Not all conservatives agree that the outrage is justified. The American Vision is an organization that has been designated an anti-LGBT hate group by the Southern Poverty Law Center, but its Director of Research, Joel McDurmon, believes the subpoenas are reasonable. “Once you file a lawsuit,” he reasoned, “you open up yourself and potentially your friends and acquaintances to discovery.” Though he also agrees the original subpoenas were “unnecessarily broad,” McDurmon is bothered by all of the fear-mongering, which he worries might only be for fundraising purposes. “This is not an attack on all Houston area pastors,” he asserted, calling it “irresponsible” to suggest otherwise.
The fate of the subpoenas will ultimately be determined by the court. In the meantime, conservatives seem intent on using the controversy to spread myths about the petition, the implications of the subpoenas, and more of the same anti-LGBT rhetoric they used to unsuccessfully oppose HERO in the first place.
On Friday, Mayor Parker announced on Twitter that the city had refiled its subpoenas: “City just refiled subpoenas in #HERO. Clarified our intent. No mention of sermons. All about petition process instructions. Never intended to interfere w/ pastors & their sermons or an intrusion on religion. Our discovery motion now clearly focused on petition.”