Religious Freedom in Houston

In today’s news conference, Elder Oaks continued his outspoken advocacy of religious liberty, a right that he has passionately defended in the past. He provided three recent examples that, he explained, demonstrate trends away from religious liberty. One of the examples Elder Oaks cited was this:

Yet today we see new examples of attacks on religious freedom with increasing frequency. Among them are these: . . . Recently, in one of America’s largest cities, government leaders subpoenaed the sermons and notes of pastors who opposed parts of a new law on religious grounds. These pastors faced not only intimidation, but also criminal prosecution for insisting that a new gay rights ordinance should be put to a voice of the people.

While the subpoenas certainly represented an attack on religious liberty, I don’t think that’s the story here. Rather, what happened in Houston strikes me as evidence of the power of religious liberty in U.S. culture and law. Some context on the kerfuffle in Houston: 

In May 2014, the city of Houston[fn1] enacted the Houston Equal Rights Ordinance (“HERO”), which, among other things, prohibits discrimination against gay and transgender individuals in employment and housing. The ordinance was passed by the city council, and was not universally embraced in Houston.

Over the summer of 2014, a group of pastors and other religious leaders started gathering signatures to get a referendum that would repeal the ordinance on November’s ballot. The referendum didn’t ultimately end up on the ballot because the city attorney disqualified some number of the signatures. Opponents of the law responded by filing a lawsuit demanding that the referendum be put on the ballot.

So far, there’s no religious liberty story here; instead, it’s the story of competing political interests. But the story doesn’t end here.

Attack on Religious Liberty

As part of discovery in the suit, the city of Houston issued a subpoena to several of the pastors involved, demanding, among other things, “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.”

The reaction to these subpoenas was immediate outrage. Major evangelical voices objected to the subpoenas. The Alliance Defending Freedom, a conservative advocacy group that focuses on religious liberty, explained that “[a]sking [the pastors] to turn over their constitutionally protected sermons and other communications simply so the city can see if the pastors have ever opposed or criticized the city, violates the First Amendment.”

But it wasn’t just religious and conservative groups arguing against the subpoenas: Americans United for the Separation of Church and State said that, while it is permissible to subpoena pastors, the pastors in question had not been accused of wrongdoing and were not parties to the suit; as a result, this subpoena was out of bounds. And the ACLU said, in no uncertain terms, that,

[w]hile a lot of things are fair game in a lawsuit, government must use special care when intruding into matters of faith. The government should never engage in fishing expeditions into the inner workings of a church, and any request for information must be carefully tailored to seek only what is relevant to the dispute.

What Happened Next

In response to this pushback, the city rescinded the subpoenas, and subsequently issued new subpoenas that focus narrowly on instructions the pastors gave about the petition process.[fn2]

So yes, the city of Houston attempted to seriously and significantly impinge on the religious liberty of a number of pastors. And it faced immediate, powerful, and loud reactions, both from organizations that agreed and disagreed with the pastors’ political (and, for that matter, religious) aims. And the political pressure worked (and, had it not, I have no doubt the judiciary would have narrowed or quashed the subpoenas).

Ultimately, rather than evidencing an attack on religious liberty, then, I believe the Houston kerfuffle shows the strength and power of religious liberty in the United States. Certainly, what the city did was bad and wrong, but we can’t affirmatively prevent all bad and wrong things from happening without seriously infringing on liberty in general; what matters is what happens in response. And in response, religious liberty won.[fn3]

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[fn1] The fourth largest city by population in the U.S., after New York, LA, and my beloved Chicago.

[fn2] Do the revised subpoenas impinge on religious freedom? Probably not; nothing about being a pastor prohibits the government from subpoenaing you, and you don’t have the religious liberty to not be subject to judicial process.

[fn3] That isn’t to say there aren’t instances of successful infringement on religious liberty. It happens, even in the United States. Just this wasn’t an example of successful infringement.