Houston, We Have A Problem: A Collision With First Amendment Rights

By Sosamma Samuel-Burnett, J.D.
Founder/President, G.L.O.B.A.L. Justice

This week several news stories have covered a uniquely problematic situation in Houston, TX. Houston’s city officials subpoenaed sermons of local pastors who oppose an ordinance that provides certain protections for LGBT community members. The ordinance would ban discrimination against LGBT by businesses serving the public, private employers, housing, city employment and city contracting – including provision for transgender people who are denied access to a particular restroom to be able to file a discrimination complaint. The ordinance passed in May 2014 but is not yet implemented because of various legal matters. And, opponents are actively seeking to repeal the ordinance through a ballot measure. While this presents a range of legislative issues – the problem in Houston is much bigger than legislative discord.

A lawsuit filed by a group of Christians prompted the City of Houston to present in their discovery process subpoenas to five pastors. Those subpoenas reportedly requested that these pastors provide “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.” Regardless of where anyone stands on the issue of LGBT rights, this discovery request may infringe on a range of constitutional rights that may supersede the purposes of this ordinance. Specifically, the subpoena could violate fundamental rights within the First Amendment of the U.S. Constitution.

The First Amendment is a primary and significant element of the Bill of Rights – a crucial part of the US Constitution, necessary for its ratification, and essential for those governed under the Constitution. The First Amendment specifically provides for the free exercise of religion, the prohibition against the establishment of religion, the freedom of speech, the freedom of the press, the right to peaceably assemble, and the right to petition for governmental redress of grievances. Case law on these subjects has further fortified the significance of these rights and their protections.

The First Amendment’s Establishment Clause works in tandem with the Free Exercise of Religion Clause. The Free Exercise of Religion Clause was specifically provided to ensure against government impeding in religious thought and practice. This is not limited to worship, but can include various forms of religious expression and in a range of forums. The Establishment Clause partners with the Free Exercise Clause so that government does not make laws that respect the establishment of any particular religion. That does not mean government should promote a society without religion, but rather that government should not inhibit free exercise by favoring any specific religion. In the case of Houston, the subpoenas intrude into the religious exercise of pastors as well as on their churches by requesting information of a religious nature that is protected under the First Amendment. Especially when the ordinance has yet to be implemented, reviewing content of religious information is likely unwarranted. And even in the context of a lawsuit, during which information is regularly requested during discovery, the present subpoena creates an impermissible “chilling effect” on the free exercise rights of the pastors and/or their churches whether or not the information requested is of use to the lawsuit.

Freedom of speech has been a hallmark of not only US liberties but that of democratic nations worldwide. While Freedom of Speech can be unpopular – particularly if that speech is contrary to one’s opinion — it is still essential to allow it. Subpoenaing the free speech of pastors within their sermons and notes is not only highly unusual but causes a troubling limit on this foundational principle of democracy. Interestingly, it has been reported that Houston’s chief policy officer indicated that the subpoenas were issued to pastors who had been involved in political campaigns and organizing and thus the information requested was not considered protected speech. That interpretation of Free Speech rights is inaccurate. Political speech has been given a high level of protection for the mere fact that it can solicit a range of views, and may not always reflect the opinions of the government. Further, requesting the information and determining whether the speech is political or not, in and of itself may infringe on First Amendment speech rights. The fact that the speech (in this case sermons) needs to be reviewed for content by the City of Houston raises issues. Further, regulating speech requires that content not be the central reason for its regulation.

The right to peaceably assemble also is a protection against government interference. Implied within this right is a related concept of freedom of association. By subpoenaing the pastors, the City of Houston may be interfering with the right to assemble by creating the noted chilling effect to participation of pastors or attendees within their churches.

In addition, under the First Amendment, the pastors, church, and/or community members also have a right to petition for a governmental redress of grievances. The fact that the complaint filed has solicited the subpoenas in question raises concern about whether the individuals involved in the lawsuit are being prohibited directly or indirectly from pursuing their complaint.

While the merits of the ordinance are debated by many, this commentary is not focused on joining that debate. However, on the issue of the subpoenas, this article notes that the City of Houston does indeed have a problem. Their efforts to grant certain rights or privileges through the ordinance may be offset by the infringement of foundational constitutional rights. No matter the content or purpose of any ordinance, impeding constitutionally protected fundamental freedoms presents significant concerns. The principles embedded in these freedoms provide a foundation for our democratic society. When First Amendment rights and freedoms are not protected, there is a potential for other rights and protections to also be infringed. And, a collision with fundamental rights is too damaging, not just to those who are directly affected but also for our democratic society as whole.

The views and opinions expressed are those of the author(s) and do not imply endorsement by G.L.O.B.A.L. Justice. We are a faith-based, nonpartisan organization that seeks to extend the conversation about justice with a posture of dignity and respect.