Houston, we have a church-state controversy: Sermons, subpoenas and the First Amendment

So, the other rocket blasting off in the news this week?

It's social media in the wake of the City of Houston subpoenaing pastors' sermons. Twitter, not for the first time, is abuzz with outrage and opinion:

Amid all the noise, the challenge for a journalist is to present the key facts and details in a fair and unbiased manner — and to help readers understand the relevant legal and constitutional questions.

For example, how would a sermon on the moral issues involved in a law (the Houston equal rights ordinance, in this case) be construed? As an application of life to faith? Or as a political statement?

On a national level, two former GetReligionistas — Sarah Pulliam Bailey of Religion News Service and Mark Kellner of the Deseret News National Edition — are among the Godbeat pros seeking to bring clarity to this latest skirmish in the culture war.

The Houston Chronicle gave the story front-page treatment today, albeit not a banner headline:

The Chronicle's lede:

Houston's embattled equal rights ordinance took another legal turn this week when it surfaced that city attorneys, in an unusual step, subpoenaed sermons given by local pastors who oppose the law and are tied to the conservative Christian activists who have sued the city.

Opponents of the equal rights ordinance are hoping to force a repeal referendum when they get their day in court in January, claiming City Attorney David Feldman wrongly determined they had not gathered enough valid signatures to qualify for the ballot.

City attorneys issued subpoenas last month as part of the case's discovery phase, seeking, among other communications, "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."

The subpoenas were issued to pastors and religious leaders who have been vocal in opposing the ordinance: Dave Welch, Hernan Castano, Magda Hermida, Khanh Huynh and Steve Riggle. The Alliance Defending Freedom, a Christian legal organization known for its role in defending same-sex marriage bans, filed a motion Monday on behalf of the pastors seeking to quash the subpoenas, and in a press announcement called it a "witch hunt."

The Houston paper then provides analysis by an attorney:

The city's lawyers will face a high bar for proving the information in the sermons is essential to their case, said Charles Rhodes, a South Texas College of Law professor. The pastors are not named parties in the suit, and the "Church Autonomy Doctrine" offers fairly broad protections for internal church deliberations, he said.

Calling it an "unusual but not unprecedented" subpoena request, Rhodes said the city would stand a better chance of getting the sermons if it were a criminal case in which the message or directive in the sermons prompted a specific criminal action.

Still, he said, the city likely will get a boost because many of the sermons are broadcast or recorded and are intended to be shared with the public.

"This is unusual to see it come up in a pure political controversy," Rhodes said. "The city is going to have to prove there is something very particular in the sermons that does not come up anywhere else."

The rest of the story is pretty straightforward, with the Chronicle giving background on the ordinance and quoting supporters and opponents. 

Going forward, I'd love to see Houston faith leaders — regardless of their position on the city law — interviewed for their views of the government demanding details of what's preached. I'd also welcome more insight from a wider range of attorneys than a single expert.

I suspect some sources would make the same observation that Religion Newswriters Association President Bob Smietana did:

But others likely would point to deeper issues. When it comes to a classic, liberal view of the First Amendment, there's a difference between someone downloading a sermon podcast on a church website vs. a government official demanding that the religious institution produce the recording of a sermon on a crucial moral issue, right?

In either case, more voices and perspectives could be both interesting and enlightening. 

By all means, if you spot noteworthy news coverage of the Houston fracas — either excellent or egregious — please provide a link in the comments section.

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