Thursday, October 16, 2014

Houston, we have a problem

...and Houston is the problem!

Over the past several days, a Houston, Texas controversy has lit up TV news, newspaper, and especially the internet. At question is the Houston Equal Rights Ordinance (or HERO for short), a petition for a referendum to the ordinance, and subpoenas of five (some say four) Houston pastors for records, including the content of their sermons. On May 28, 2014, the Houston City Council passed HERO. The ordinance was go into effect on  June 27, 2014. It has not because of legal wranglings over it. Though there are numerous problems with the ordinance, but perhaps the most prominent issue is over bathroom usage by persons with gender identity issues -- prompting the nomer "Bathroom Bill."

A great deal of misinformation has gone out on the internet, including that all pastors (not just the five) have to submit sermons to the city -- even that  sermons will be reviewed prior to being preached -- and that the ordinance allows men to go into women’s bathrooms (partially true, but not that simple).

Here's where things seem to be at the moment:

The city passed the "Bathroom Bill", 11 for, 6 against.
A petition was floated to vote to repeal the ordinance, garnering about 3 times as many signatures as needed.
The city secretary certified the petition.
The city attorney and mayor invalidated the petition, claiming too many irregularities (that would be about 33,000 irregularities).
A group of citizens have sued the Mayor, City Secretary and the City of Houston.
Seeking "discovery of evidence" for the lawsuit, the city has subpoenaed records of five Houston ministers.

This subpoena of records from these ministers is what has created the firestorm.

An example of City of Houston subpoena request in Woodfill v. Parker can be found HERE. The purpose of the subpoena is discovery of admissible evidence. In itself, this is a legitimate exercise of subpoena. I’m not a lawyer but here is a simple way I can illustrate it. If a pastor confessed to breaking the law in a sermon (or libeled someone), there would be a legitimate reason to get a transcription or recording of that sermon as evidence. So their might be some legitimate reason within the subpoena. The subpoena posted requires 17 different records (with various subpoints to some of the 17). This goes beyond looking for information, and is at least harassing these people or exacting retribution for daring to fight the mayor and city council on this issue. While it may not be a direct assault on religious liberty, it is what some people call “chilling effect.” The extreme nature of the request -- even asking for -- can produce desired response beating into silence those who wish not to encounter "the long arm of the law." Further, it distracts persons from the regular life and ministry and ties them up with frivolous searches for minutia.

The five ministers from whom the records have been demanded are not parties to the lawsuit against the city. But the city attorney defended the subpoena on the basis of:

* the five were actively involved in leading the fight against the "Bathroom Bill" and launching the petition drive
* they appeared before the city council repeatedly regarding the ordinance and the petition
* the petition was organized at the churches
* the organizing of drives and rallies, as well as signing parties, were held at the churches

It seems now that the mayor and city attorney are backing away from these subpoenas now that they see the enormous push-back that they are getting. A report in Religion News states: “Mayor Parker agrees with those who are concerned about the city legal department’s subpoenas for pastor’s sermons. The subpoenas were issued by pro bono attorneys helping the city prepare for the trial regarding the petition to repeal the new Houston Equal Rights Ordinance (HERO) in January. Neither the mayor nor City Attorney David Feldman were aware the subpoenas had been issued until yesterday. Both agree the original documents were overly broad. The city will move to narrow the scope during an upcoming court hearing. Feldman says the focus should be only on communications related to the HERO petition process.”

The “Notice of Intention to Subpoena Pastor Steve Riggle to Produce Documents or Tangible Evidence” lists three law firms and the “City of Houston Legal Department” (they are representing the mayor). It was submitted by Susman Godfrey L.L.P., a law firm that is listed in the subpoena notice as “Lead Counsel for City of Houston.” City Attorney David Feldman is also named on the document. It also states, “Issued at the instance of the City of Houston, represented by the undersigned attorneys of record.” If they didn’t know it seems like they chose not to know so they would have plausible deniability! A letter from Texas Attorney General Greg Abbott to Houston City Attorney Feldman put it this way, "Nevertheless, these lawyers acted in the City’s name, and you are responsible for their actions."

The upside of all this is that a judge will probably quash these subpoenas -- if the city doesn't withdraw them before that happens!

Finally, is men going into women's bathrooms -- and vice versa -- a legitimate concern if this ordinance goes into effect? Yes, I believe it is. Now there was specific "bathroom" language in the original draft of the ordinance. The language was: "It shall be unlawful for any place of public accommodation or any employee or agent thereof to deny any person entry to any restroom, shower room, or similar facility if that facility is consistent with and appropriate to that person’s expression of gender identity." This was was removed before HERO was passed. Then all is well, right? Wrong. The removal the specific wording about restrooms and showers does not mean that "public accommodations" (i.e. businesses) cannot be sued under this ordinance. HERO makes it unlawful for “any place of public accommodation…to intentionally discriminate against any person on the basis of any protected characteristic…” The protected characteristics include “gender identity,” which means one own’s gender identification, “although the same may not correspond to the individual’s body or gender assigned at birth.” If a man identifies as a woman, e.g., a store cannot prohibit that man from using the women's restroom.

This is an issue that is not going away, and it will be interesting to see how it plays out in Houston.

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