Don't Tell Me the Speech Police Don't Exist

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Houston Mayor Annise Parker announced on Friday that the city would narrow the scope of a controversial subpoena that asked five local pastors for copies of some of their sermons and communications.

The subpoena — which sits at the uncomfortable intersection of church and state — drew immediate ire from conservatives across the country.

The Family Research Council's Tony Perkins wrote a blog post titled "Snoops on the Stoops of the Church," which decried the city's "totalitarian tactics." Texas Sen. Ted Cruz said the subpoena was an "assault against religious liberty."

Texas Attorney General Greg Abbott, who is in the middle of a gubernatorial run, sent a letter to the Houston city attorney, saying, "whether you intend it to be or not, your action is a direct assault on the religious liberty guaranteed by the First Amendment."

Of course, this is actually more complicated than that: It dates back to when the city passed the Houston Equal Rights Ordinance, which provides protections to city's LGBT community. Led by some of the subpoenaed pastors, organizers collected signatures to try to repeal the ordinance through a referendum.

As The Washington Post explains, "supporters of the repeal reportedly gathered 50,000 signatures, well over the 17,269 needed for inclusion on the November ballot." But the city threw out thousands of them, saying they were invalid, and that meant the question was removed from the ballots.

A group of Christians sued Houston and in response, the city issued subpoenas for the sermons and communications of five pastors that the city said could help prove their case in court.

The Houston Chronicle reports that after the uproar, the city decided to remove the word "sermon" and narrow the scope, but the gist of the subpoena still stands.

The paper reports:

" 'We don't need to intrude on matters of faith to have equal rights in Houston, and it was never the intention of the city of Houston to intrude on any matters of faith or to get between a pastor and their parishioners,' Parker said. 'We don't want their sermons, we want the instructions on the petition process. That's always what we wanted and, again, they knew that's what we wanted because that's the subject of the lawsuit.'

"Opponents took advantage of the broad original language, Parker said, to deliberately misinterpret the city's intent and spur what City Attorney David Feldman called a 'media circus.' ...

" 'If during the course of the sermon — and I doubt this very much — a pastor took 15 or 20 minutes to go into detail about how the petition process goes, then that's part of the discovery,' she said. 'But that's not about preaching a sermon on anybody's religious beliefs, it's not conveying a religious message, that's part of the petition process, and all we're interested in is the petition process.' "

Essentially, the city is arguing, if pastors, for example, encouraged their congregations to sign petitions or gather signatures, that type of speech is not protected.

Time explains:

"University of Houston law professor Peter Linzer says the city reached too far in issuing the subpoenas. One subpoena sent to Pastor Steve Riggle, for example, asks for 'all speeches, presentations, or sermons related to [the equal rights ordinance], the petition, Mayor Annise Parker, homosexuality, or gender identity.' However, Linzer says it wouldn't impinge on the pastors' First Amendment rights if the city only asked only for sermons or speeches related to the signature drive. 'Let's assume they gave instructions to cheat,' Linzer says. 'That would be relevant speech and I don't see how they would have any First Amendment protection for that.' "

It's still not clear whether religious groups will be satisfied with the narrowing of the subpoena. The city of Houston is not enforcing the provision, pending the outcome of litigation.