No, we did not misunderstand Mayor Parker's subpoenas...

Error message

The Houston subpoenas are no normal discovery process, but the abuse of that process on the order of fishing with a stick of dynamite. The Washington Post's legal blogger Eugene Volokh (of The Volokh Conspiracy) notes their potential to suppress religious speech. - Tim Bayly

Such demands (of the Houston subpoenas) create a feeling of surveillance that may indeed deter or dampen some kinds of religious speech.

- Eugene Volokh writing about the subpoenaing of Houston pastors' sermons.

Over at American Vision, Joel McDurmon scolds those of us who judged the subpoenaing of Houston pastors' sermons and other congregational communications to be the abuse of legal process, the suppression of Christians' exercise of their First Amendment rights. McDurmon condemns us for writing "as if the city has made some move to start monitoring all pastors’ sermons," adding that "this simply is not the case." 

Really? I can't imagine anyone anywhere wrote about this as if it meant Houston's city attorneys were now going to monitor all the sermons preached in churches each week. McDurmon's set up a straw man. Isn't there something between mayors' legal departments not monitoring any pastors' sermons and mayors' legal departments "monitoring all pastors' sermons?" McDurmon's being rather ham-fisted and he might do well to look into the concept of incrementalism.

Beyond McDurmon's obvious straw man, he complains about Christians commenting on the case, stating ""our activists ought to be more careful" (his emphasis).

It may seem a quibble, but can I please say I'm neither an...

activist nor the brother of an activist. Rather, I'm an officer of Christ's Church warning the flock day and night with tears. It's called "pastoral ministry," Brother McDurmon.

And speaking of warnings, let me repeat myself. Persecution is already common in these United States and it's proceeding almost unhindered by either our much-vaunted tradition of English Common Law or our Bill of Rights. At this point the persecution we face here in North America is somewhat veiled to those who prefer to sleep as long as possible. It hides behind state's Child Protective Services, EEO rules, human resources departments, faculty senates, tenure committees, public school teachers, principals and superintendents, city councils, university diversity policies, military rules, and the legal departments of mayors such as Houston's own Annise Parker. Generally speaking, right now people only lose their degree, their promotion, their job, their children, and their reputations—and to be sure these are small losses when placed next to the Christian women and children of Central African Republic slaughtered by Muslim Seleka rebels.

Yet don't let anyone lie to you: the persecution suffered by Christians in this country is powerful, silencing the witness and confession of the Gospel everywhere and constantly. To act as if we don't see or care about this low-grade persecution because it hasn't yet come for us and our job and children, or because it hasn't yet come to our city or school system, or because our mayor is not a lesbian who is subpoenaing the sermons of the churches in our city, is to refuse to read our times as closely and well as we read the clouds. It is to sleep when we should be preparing our children to stand against social pressures, stigmas, and loss of income so in the not-very-distant future they will be able to stand against imprisonment and execution.

Sure, it sounds histrionic to speak of the iron fist of diversity, inclusivity, and pluralism as a real threat to the civil liberties of Christians today. Unless, of course, one has studied the growth of the persecution and martyrdom suffered by our brothers and sisters in Christ under the iron fist of that same diversity, inclusivity, and pluralism enforced across the ancient Roman Empire.

As I keep saying, buy and read Herbert Workman's Persecution in the Early Church. (About fifty Baylyblog readers have clicked through and looked at the book thus far, with three asking me to send them a free copy, but no one has purchased a copy. You know, we can't do this work without financial support. Hint hint.)

One other thing about this Houston attack upon our freedom of religion: contrary to the smart ones among us who love to correct the simple, the Houston subpoenas are not misunderstood by those ignorant of lawsuits' discovery processes. Speaking for myself, I've been regularly involved in ministry to adults who were sexually abused in their childhood and youth for many years now, and those of us who give ourselves to this work are familiar with lawsuits, claims and counter-claims, depositions, statutes of limitations, and of course the discovery process. Yesterday I was copied on an e-mail from an attorney who has litigated over 200 sex abuse cases. The e-mail concerned the location and legal counsel for an upcoming deposition. So let's assume those raising the alarm about the Houston subpoenas are not doing so because they fail to understand something as basic as discovery, OK?

The Houston subpoenas are no normal discovery process, but the abuse of that process on the order of fishing with a stick of dynamite. The Washington Post's legal blogger Eugene Volokh (of The Volokh Conspiracy) notes their potential to suppress religious speech. The goal of defending her administration against the lawsuit could and should have been accomplished without resorting to jack-booted SS tactics. Volokh himself judges the subpoenas to be aimed at material not related to the case:

I don't quite see how "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" would be relevant to the litigation about the validity of the referendum petitions. At the very least, the subpoena seems vastly overbroad. And the fact that it seeks the contents of religious speeches does counsel in favor of making the subpoena as narrow as possible (which would likewise be the case if it sought the contents of political speeches). I'm not sure what sort of legally relevant information might be contained in the subpoenaed sermons. But the subpoena ought to be narrowed to that legally relevant information, not to all things about homosexuality, gender identity, the mayor, or even the petition or the ordinance.

* * *

while sermons are generally not intended to be as confidential as the names of journalists’ sources, there is still good reason to limit demands for the text of sermons when the text is irrelevant and therefore unnecessary to any legal decisionmaking. Such demands create a feeling of surveillance that may indeed deter or dampen some kinds of religious speech. And while such deterrence or dampening is constitutional when relevant information is subpoenaed (just as it’s constitutional as to subpoenas related to editorial meetings and tenure reviews), it should be avoided and minimized in cases where the subpoenaed information is entirely or largely legally irrelevant.

All our superior brethren who think simple pastors can't understand the legal process and don't have the proper perspective on what's actually going on in Houston haven't a clue what it means to be a pastor, today. What it means to receive letters threatening lawsuits because we sit on a board of elders that lovingly and patiently and carefully disciplined their client. What it means to receive warnings against preaching on moral issues lest we risk our congregation losing her tax-exempt status. What it means to be told our insurance will be cancelled if we don't require men in our congregation who carry to leave their guns at the door. What it means to have our property confiscated by the city planning commission, and without compensation. What it means to pay many thousands of dollars for legal counsel defending the church against hostile neighbors who file a harrassing lawsuit because they "don't want to hear children playing" on our church property. And on it goes.

Pastors are at the center, the vortex, of the expansion of persecution of Christians across our nation just now and we know it. Trust me, we know it. And that's why our sermons are all grace and R2K and me-and-Jesus.

You can't preach against child-slaughter, sodomy, or lesbianism. Surely you heard about the Houston mayor sending subpoenas to the pastors of her city, demanding under threat of contempt of court, "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." You know, pastors can't be too careful about what we say.

Tim Bayly

Tim serves Clearnote Church, Bloomington, Indiana. He and Mary Lee have five children and big lots of grandchildren.

Want to get in touch? Send Tim an email!