Several people have contacted me over the recent Fox News headline, “City of Houston demands pastors turn over sermons.” WND.com was even broader: “Houston demands oversight of sermons.” There is no doubt that the Mayor and City Council are radical and aggressive LGBT activists trying to advance their agenda against all morality and the will of the people in the actual subject matter behind these headlines. But the actual case does not warrant these alarming headlines, and our activists ought to be more responsible.
I write this only to calm some of the unnecessary alarm, and to introduce some reason and understanding into the mix. The headlines read as if the city has made some move to start monitoring all pastors’ sermons, and this simply is not the case. It also gives the impression that this is some out-of-the-blue, general attack tactic by the activists upon the pulpit. It is not. It is not out-of-the-blue, it is not broad and general as far as the implicated pastors goes, and it should not be a surprise at all.
The City is not making a move to monitor sermons. The city is merely responding to a lawsuit against it and using standard powers of discovery in regard to a handful of pastors who are implicated as relevant to the lawsuit. The issue is here: once you file a lawsuit, you open up yourself and potentially your friends and acquaintances to discovery. This is the aspect that has not been reported, but it is an important part of the context.
This is basic court procedure. But the headlines make it sound like a surprise attack by leftists advancing their agenda on unsuspecting Christians.
Even the Alliance Defending Freedom’s (they are representing the plaintiffs who filed suit) write up gives the impression that this is an attack on irrelevant bystanders, saying “the pastors are not even involved.” That’s not necessarily true. The pastors are not a party in the lawsuit, true, but at least some of them are quite possibly “involved,” and that’s a significant point. To the extent they are involved, Texas court rules (like most court rules) give allowance for discovery of evidence in their associations with the parties to the suit and the subject matter of it.
What is “discovery of evidence”? Is this some liberal tactic that has perverted our legal system? No, it is civil legal procedure 101. Granted, I am not a lawyer, but that’s the point: this is basic stuff. Once a case enters litigation, both sides have fairly broad—although protected and defined—allowances to demand papers, communications, etc., related to or potentially related to the subject matter of the case. Why? Because any relevant or related material may produce evidence crucial to the case. It’s a basic legal right that is important to justice in the big picture.
Further, it is not unprecedented at all for people who are not party to the case to be ordered by the court either to testify or produce materials during the discovery phase. That is what a subpoena is. It happens all the time, because even if you’re not actually a party in the suit, you may in fact have interacted with them in such a way and on relevant topics that your interactions are crucial, or at least relevant, to the case.
Let’s consider an example to which Christians can relate. Suppose an openly Christian mayor attended, during office hours, a Day of Prayer event outside the Mayor’s Office Building on a given date. I have no problem with that, of course, but suppose a local atheist group objected and filed a lawsuit. Let’s suppose further that behind the scenes, a Marxist nonprofit group, members of which are friends and colleagues with the atheist group, was possibly helping fund and coordinate the lawsuit for the purposes of destroying the mayor’s reputation and taking over the local city council. Yet the Marxist group is not a party to the suit. Would the mayor, now a defendant under fire, be legally interested in the communications taking place between those groups? Could those correspondences and even group speeches be relevant to the case? Could they exonerate the mayor? Maybe, maybe not. What if, possibly, those communications contain the only evidence that could exonerate the accused? Is it reasonable that those communications could at least lead to the discovery of relevant evidence important to the mayor’s defense? Depending on the nature of the claims filed, absolutely.
Now just flip the ideological sides in the scenario, and you have, essentially, the case before us. The Mayor is an open lesbian and LGBT activist. The City Council recently passed an ordinance that would allow transgenders to cross bathrooms in public. Predictable and rightful outrage ensued from Christians and conservatives. A local group of 400 pastors opposed the measure. Some of them apparently have connections with a petition drive, organization, coordination, and possibly even funding of the petition drive to overturn the ordinance. Then, when the mayor apparently overstepped her authority in rejecting signatures on the petition (that were already certified), a group of Christians and conservatives allegedly connected with this group of pastors filed a lawsuit. Do you think the defendants might be interested in the communications between those groups?
And what 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. Even the Houston Chronicle called it “an unusual step.” 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. I think it is both perfectly justified and will be upheld by the court.
I think the court will probably not quash the subpoena entirely. I believe it will, however, require it to be modified with a much stricter scope. Of course, this will also depend upon the nature of the charges made in the original suit (which I have not yet been able to access), and the nature of the defense being made against those charges. But I doubt these pastors will ultimately be required to submit anything anywhere near what the defense demanded, if anything.
But what bothers me most here are the fear-mongering headlines. 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.
But here’s the kicker in this particular case: as with all cases, all parties and their lawyers knew these rules before they filed suit. The city’s move should have been no surprise to anyone. They should have expected it—especially from liberal activists, who as we all know, are ruthless, restless, and play dirty.
So why are the headlines giving a different impression? I don’t know, but I can say that such fear-mongering could be used for some killer fundraising. I hope this is not the motivation.
It also plays into the overarching premillennial narrative of declining Christian influence in society. But actually, in this case, the reverse true. The orderly rules of discovery and evidence we have in place are the heritage of a Christian society which values rule of law and fair play—especially for the accused. Is it the case that miscreants can use these laws to their advantage, or even abuse them to a degree? Yes, but I would prefer that to the alternatives. As Paul Scofield said, for Sir Thomas More, in A Man for All Seasons, “I’d give the devil benefit of law for my own safety’s sake.”
Fear mongering is not needed, and in fact is unwarranted and damaging to the Kingdom of Christ in general. It is irresponsible to the real task at hand. What we need on this particular issue right now is a bit of courageous patience. It may be worth noticing that a former attempt to defeat the bathroom ordinance in question directly via a separate court order was rejected by the court because it believed adequate remedy was available through the appeals process with the current suit filed. Like it or not, such remedies sometimes take time.