So you think sermons are off-limits, eh? Think they can’t be entered, and to that end subpoenaed, as evidence in a lawsuit? Think it is trampling First Amendment rights to make legal or political hay of a pastor’s sermons? Yeah? Well, I got two words for ya:
The year was 2008—before the sleeping giant had awakened, then fallen back to sleep again, and then tried to run in his dream, only to drag along as if through quicksand, but kicked his leg in his sleep such that we thought, for a moment, he had awakened again. In that era, we faced a monumental election the likes of which had the EEOC on the edge of its seat: the potential election of America’s first Kenyan, Muslim, and actually inhaling, president who happened also to be biracial.
In that dark hour leading up to the 2008 election, evidence of the most damning sort surfaced in the media. It could potentially end the bid of this towering community menace, for it was openly treasonous and proved as clearly (and just as effectively) as anything until Dinesh D’Souza’s 2016 that this candidate truly hated America. And it was nothing short of . . .
. . . a sermon.
The Rev. Dr. Jeremiah Wright, pastor of candidate Barack Obama for twenty years, graced the pulpit of Trinity United Church of Christ in Chicago, and more importantly graced YouTube, with the now-scandalously-famous absolute proof of America-hating:
“Not God Bless America. God damn America.”
And for rhetorical good measure, the “God damn America” was repeated with ghusto. He didn’t want us to miss this.
And when this surfaced, conservative politicians and Christian leaders and organizations across the country . . . united to squash the undue politicization of pastors sermons. Right? It was unfair that the media had focused upon a sermon for political reasons. This was an attack on First Amendment rights! I mean, if a pastor is not free to preach his conscience, and falls under political scrutiny, then all pastors and all Christians are under attack.
Except . . . conservatives didn’t unite like that. Instead, they held up the contents of this pastor’s sermon everywhere throughout the conservative media for all of its seditious and hateful glory. In fact, for example, Sean Hannity noted the church had overstepped its bounds with the IRS:
[T]he church is raising questions with the IRS because of how they’re campaigning for Obama at the pulpit. . . . First of all, I will not let up on this issue, Jeanine Pirro. If his pastor went to Libya, Tripoli with Louis Farrakhan, a virulent, anti-Semitic racist, his church gave a lifetime achievement award to Louis Farrakhan. That’s been Barack Obama’s pastor for 20 years. And we will continue to expose this until somebody in the mainstream media has the courage to take this on. Do you agree this should be an issue?
His guest—now Fox News fav Judge Jeanine—agreed: “They shouldn’t be politicking from the pulpit. That’s why the IRS is getting involved.”
Forgive me, but that sounds ominously like lesbian mayor Parker’s now-condemned Tweet, “If the 5 pastors used pulpits for politics, their sermons are fair game.”
But perhaps the astute reader will note that while this was politics, true, it was not the government subpoenaing sermons in the same way as with Houston today. Surely the First Amendment protects us from this, no? In my original post on this story, I argued that this was not the case, even if the pastors are not party to the case. Some readers understood this; others were simply confused from hearing the opposite from so many other outlets they trust. Many, however, were downright insulting, defiant, and ugly: I’m apparently not saved and hate America, not to mention just plain stupid, if this segment of the crowd is to be believed. Well, let me put this in language to which we can hopefully all relate:
What if, during that Jeremiah Wright controversy, Barack Obama moved against some conservative pundits somewhere and sued them for defamation for trying to associate him with Wright’s views? Obama would have been unwise to do so, but suppose he did anyway. Such a case would have made Obama the plaintiff and the conservative pundits the defendants. And it would have made the pastor, Jeremiah Wright himself, a nonparty in the suit. Yet he would be relevant to the case because it was his sermons that caused the whole ruckus to begin with. And his sermons would be relevant to the case, because they could contain evidence that support the conservatives’ original claims which are under litigation. Wright would be nonetheless a nonparty in the filed suit.
Now let me ask you the $100k question: in the discovery phase of such a suit, what types of evidence do you think the defense lawyers would be interested in, and would in fact go after? It would probably include a wide swath of communications between Obama and Wright. But whatever the breadth of the requests would be, I can guarantee you one thing it would have included: Jeremiah Wright’s sermons. In fact, an ambitious lawyer would probably attempt to go after Wright’s sermons for the entire 20 years Obama attended there. They may not get that much, or anywhere near it, but they probably would have tried.
And how do you think they would have obtained those sermons? Yes, Youtube is open and free, but suppose most of them, or the most relevant of them, had not been recorded or posted in this way. How do you think the lawyers would get the evidence to exonerate their claims in such a case? Only by subpoenas.
Because at the end of the day, if you want to enter evidence, you must either have possession of it already or you must issue a subpoena to get it. You can issue a subpoena for documents, recordings, etc., or you can issue one for a person to testify. But to get it, you must motion the court to do so.
And I can guarantee you that in such a case, many if not most of the conservative and Christian world—incuding Ted Cruz had he been in office—would have lined up in support of the subpoenas, and called for Wright to be outed and his sermons held up to scrutiny in court.
The simple fact is that almost any speech, except that directly protected by attorney-client privilege or similar matters, if associated with a lawsuit, can be subpoenaed. Leading conservative legal scholars have confirmed this. For example, the now widely-quoted Eugene Volokh: “In principle, I don’t think there’s a First Amendment bar to subpoenaing the text (or video or audio recordings) of sermons, if they are sufficiently relevant to a case or an investigation.”
Now, we can be sure some readers are still fuming and don’t wish the laws to be applied evenly to our opponents. I understand. Some of these will condemn this post for the shameful audacity (can we still use that word today?) to compare our beloved Houston pastors to the dreadful Jeremiah Wright. Please note, I did no such thing. I compared the law and the likely motions of lawyers in two similar cases with the ideological sides reversed. If that upsets you, then God’s word upsets you: the rule of law upsets you (Ex. 21:24–27; Deut. 6; 19:21), equality of all people under one law upsets you (Ex. 12:49; Lev. 19:34; 24:22; Num. 9:14; 15:15, 16, 29), and equal justice according to the law with no respect of persons upsets you (Lev. 19:15; Acts 10:34; Rom. 2:11; James 2).
All of this means, among other things, that if Christians want to make progress in society in the way they seem to in practice (not the way much of their theology dictates that they stay out of it), then they need to take biblical law seriously, and this will mean they have to get to the real hearts of the matters—not the overly emotional wolf-crying in certain media. Instead, there are real substantial problems at the heart of this crisis as with most others—and the big-shot media and activists are often scared to death to go there for fear of bad PR. Among those problems is the way in which Christians and pastors hamstring themselves at the outset with 501c3 status, R2K theology, fear of preaching God’s law, acceptance of bad precedents regarding civil rights and property, government schools, and much more—especially concrete applications of the ones listed.
Hopefully I can talk about this more in the near future. In fact, it might make a good sermon.