What if my sermons got subpoenaed? Reflections on Religious Liberty in post-Christian America

When I first came across the story from Houston about lawyers for the city subpoenaing communications from clergy in connection with the ongoing conflict over Houston’s equal-rights ordinance, I was amazed. A facebook friend who is of a more conservative bent posted it on his timeline. I had come to expect such outrageous stories from him that didn’t hold up under closer scrutiny. So I succumbed to the click-temptation, read about it, and still wondered.

On the one hand, I suspected that all of the subpoenaed pastors provided public versions of their sermons (either text, or more likely, video), so lawyers ought not need subpoenas to read them. On the other hand, I immediately wondered what might happen if this practice became widespread. I could readily imagine mayors using subpoenas to suppress the prophetic voices of clergy speaking out on racism, police brutality, or presidential administrations using similar tactics against clergy who speak out against their military adventures overseas.

What has surprised me is the response from the mainstream (progressive?) press. Media Matters for America (a progressive media watchdog) assures us: “No, The City Of Houston Isn’t Bullying Anti-Gay Pastors – This Is Basic Lawyering.” Eugene Volokh takes a somewhat more nuanced approach at the Washington Post. He provides some hypothetical situations when a subpoena might be appropriate and legal, but argues that this effort is far too broad.

On one level, this dispute seems to me another example of the contested territory of religion in contemporary America. When is a pastor or an imam, or a rabbi, or whoever, communicating religious convictions or engaging in political advocacy? And when might she be doing both at the same time? Is it wrong for a pastor to express his opposition to a city ordinance from the pulpit and to urge his congregation to oppose it?

We may find the pastors’ arguments, political opinions, and theology wrong, even repugnant, but do they have the right to hold those opinions and to share them with their flocks? And who has the right to be the arbiter of such questions? Local governments? An attorney general? The Supreme Court?

One of my discomforts with the Hobby Lobby case was precisely that issue. Supporters of the contraception mandate were critical of the position taken by the owners of Hobby Lobby arguing in essence that their arguments about religious conscience weren’t valid. But who is to judge whether a position is religiously valid? As Queen Elizabeth I famously said, “I have no desires to make windows into men’s souls.”

I’m also uncomfortable with efforts to force small businesses to, for example, make wedding cakes for same-sex couples. Aside from wondering why such couples would want their cakes made by people opposed to their marriages, I think it really does impinge on religious freedom, just as in an earlier age, the US court-martialed those who refused in conscience to serve in the military. Does the state have the right and power to force a photographer to take pictures at a same sex wedding if his religious beliefs oppose such rites?

I suspect that the initial subpoenas were a fantastic and misguided over-reach. I suspect also that the mayor and her attorneys were playing to their base, just as the pastors play to theirs. Whatever the case, this is so hamfisted an attempt that it will likely end in utter failure and probably contribute to the ultimate revocation of the ordinance in question.

Still, it should put a chill down the spine of every religious leader.  Undoubtedly there will come other cases that have universal popular appeal and more skillful lawyers and politicians who will find a way of limiting the speech of clergy, if not conservative Christian pastors, then progressive ones, or more likely, Muslims.

Fortunately, the backlash is coming not just from conservative demagogues. It is also coming from Houston clergy who are supporters of the ordinance at issue. Chris Seay of the Ecclesia community in Houston has written an eloquent open letter to the mayor:

I see you as a friend, so I choose to speak to you in the context of friendship. You lead the city that I love, and I want my church, Ecclesia, to continue working alongside you to make our city better. I’m a native Houstonian and a self proclaimed Houston Geek. I love our diversity, food, sports teams, history, entrepreneurial spirit, and most of all I love the people. I know we agree that all Houstonians are made equal in God’s eyes.

Despite our common aim to better this city, your administration’s actions over the last 30 days confirm that we are now formally at odds. It doesn’t have to be this way, but your decision to subpoena the sermons and communications coming from Christian churches in our city requires a clear and unequivocal response. These actions impede on the historic religious freedoms of America’s churches, mosques, synagogues, and temples, while equally being a breach of the relationship we share as citizens of this city. These efforts will only create further division and mistrust, bringing harm to the greater good of Houston.

Oh, and it seems the mayor’s actions have resulted in a miracle: unity among Texas Baptists

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