Houston officials face criticism after sermon subpoenas in Houston Equal Rights Ordinance fight

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In a letter to the Houston city attorney, the Texas attorney general called the action a 'direct assault' on the First Amendment (KTRK)

A day after it came to light that attorneys working for the city sent subpoenas to several pastors relating to their sermons, a firestorm of criticism has erupted. Responding for the first time publicly, Mayor Annise Parker and City Attorney Dave Feldman now say the wording of the subpoenas were too broad.

"It's not about what did you preached last Sunday, it should have been clarified, it will be clarified," said the Mayor.

Parker and Feldman attributed part of the initial uproar over the fact that neither actually saw the language of the subpoena until Tuesday. An outside law firm is working on this case pro bono for the city, and Feldman says he wasn't aware of the language in this specific subpoena.

"I looked at it, I felt it was overly broad, I would not have worded that way myself. It's unfortunate that it's been construed as some effort to infringe on religious liberty," said Feldman.

When opponents of the equal rights ordinance rolled their petitions into City Hall months ago, both sides knew a number of local church leaders helped gathered the thousands of signatures. The involvement of some local pastors were never in doubt. But repeal effort leader Jared Woodfill draws a clear distinction between civic involvement and the Sunday sermons.

"This is the first time I'm aware of where the City of Houston has used its resource and the subpoena power of the state to go in, and actually ask a pastor for their sermon and their notes, " said Woodfill, "This is a Mayor who will stop at nothing because she's made it very clear that this is about her and her personal agenda. So she's using our tax payer dollars, and the power of the government to harass the churches."

South Texas College of Law Professor Josh Blackman says the current wording of the subpoena is definitely problematic.

"If the subpoena is narrowed I think that would be much better, but to the extent they're still asking about sermons, that may have First Amendment problems depending on how broad it is," said Blackman.

Feldman says that when the city responds to the response of the subpoena, it will revise the wording and narrow the scope. Whether that will satisfy the critics remains to be seen. Woodfill says he didn't feel like anything said from the pulpit should be part of the lawsuit.

Blackman says in his opinion, the additional controversy on this issue could have been avoided, if the attorneys working for the city were more precise.

"I think if the city had taken the care about why they're going after these four or five preachers it would be much less blundersome. Now it seems the city didn't even know what they're requesting in the first place and dialing it back."

On Wednesday, Attorney General Greg Abbott issued a statement, calling on the city to withdraw its subpoena requests. In a letter to Feldman, Abbott wrote:

    Dear Mr. Feldman:

    Your office has demanded that four Houston pastors hand over to the city government many of their private papers, including their sermons. Whether you intend it to be so or not, your action is a direct assault on the religious liberty guaranteed by the First Amendment. The people of Houston and their religious leaders must be absolutely secure in the knowledge that their religious affairs are beyond the reach of the government. Nothing short of an immediate reversal by your office will provide that security. I call on you to withdraw the subpoenas without further delay.

    I recognize that the subpoenas arise from litigation related to a petition to repeal an ordinance adopted by the city council. But the litigation discovery process is not a license for government officials to inquire into religious affairs. Nor is your office's desire to vigorously support the ordinance any excuse for these subpoenas. No matter what public policy is at stake, government officials must exercise the utmost care when our work touches on religious matters. If we err, it must be on the side of preserving the autonomy of religious institutions and the liberty of religious believers. Your aggressive and invasive subpoenas show no regard for the very serious First Amendment considerations at stake.

    A statement released by the Mayor's Office claims that the subpoenas were prepared by outside lawyers and that neither you nor Mayor Parker was aware of them before they were issued. Nevertheless, these lawyers acted in the City's name, and you are responsible for their actions. You should immediately instruct your lawyers to withdraw the City's subpoenas. Religious institutions and their congregants should never have to worry that a government they disagree with will attempt to interfere in their religious affairs. Instead of safeguarding that trust, you appear to have given some of the most powerful law firms in Houston free rein to harass and intimidate pastors who oppose City policy. In good faith, I hope you merely failed to anticipate how inappropriately aggressive your lawyers would be. Many, however, believe your actions reflect the city government's hostility to religious beliefs that do not align with city policies.

    I urge you to demonstrate the City's commitment to religious liberty and to true diversity of belief by unilaterally withdrawing these subpoenas immediately. Your stated intention to wait for further court proceedings falls woefully short of the urgent action needed to reassure the people of Houston that their government respects their freedom of religion and does not punish those who oppose city policies on religious grounds.

    Sincerely,
    Greg Abbott
    Attorney General of Texas

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