Houston’s Equal Rights Ordinance (HERO), a law designed to ban discrimination, has been controversial since before it was signed into law by Mayor Annise Parker on May 28, largely because of protections it offers the LGBT community. (The most controversial aspect of the bill, which involved public restrooms, was stripped from the final language two weeks before the bill passed.) City leaders fervently debated it while various organizations—based both in and out of the city—lobbied them against the bill. Noted non-Houstonian, former Presidential candidate and Fox News host Mike Huckabee urged his viewers to register their opposition with the city council and Mayor Parker. 

After the bill passed, the backlash intensified. Opponents promised to challenge it with a ballot referendum in the fall. As the Houston Chronicle reported at the time: 

Opponent Dave Welch, of the Houston Area Pastors Council, said his group will begin gathering signatures against the ordinance to trigger a referendum seeking its repeal this November. The group would need to gather roughly 17,000 signatures – or 10 percent of turnout in last fall’s mayoral race – in the next 30 days.

“Once we correct this grievous act through the ballot this fall,” Welch said in a statement, “we will then remind those members that patronizing a tiny interest group and outgoing mayor instead of serving the people leads to a short political career.”

However, that recall effort won’t be on the ballot next month. In August, city officials said that the petition drive failed to garner enough signatures, as Click2Houston.com reported: 

Opponents had the chance to petition to repeal the law, but Mayor Annise Parker and City Attorney Dave Feldman say the petition was ruled to be invalid because not enough signatures met the necessary requirements.

The mayor’s office says each signature must be accompanied by the printed name, address, voter registration number or date of birth and the date signed. Anyone who collected signatures must also have personally signed the petition, and have appeared before a notary to acknowledge under oath that the signatures were made in their presence. 

Using that criteria, the mayor’s office says the number of valid signatures totaled 15,249, which is short of the 17,269 required by the City Charter.

The petitions filed to the city included more than 50,000 signatures, which has left supporters of the recall petition suspicious of the review process—leading to a lawsuit filed by supporters of the recall.

But the main source of their outrage this week was a series of subpoenas filed by Houston city attorneys as part of the discovery process in that lawsuit, which sought copies of a variety of communications regarding HERO from pastors in the Houston area. The controversy involved section II.12 of the subpoena, which demanded “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 idea of city attorneys subpoenaing sermons from churches is uncomfortable on its face: Using governmental authority to investigate religious speech makes people feel as if their rights are in question, which Republican leaders in Texas seized upon. Ted Cruz issued a statement declaring that “The government has no business asking pastors to turn over their sermons. These subpoenas are a grotesque abuse of power, and the officials who approved them should be held accountable by the people,” while word of a city attempting to intrude on pastors’ sermons spread so quickly through the Internet that rumor-debunking website Snopes.com quickly created an entry to assess the truth of the reports. (Its ultimate conclusion was “mixture” of fact and fiction.) 

Shortly after the outrage, Mayor Parker attempted to walk back the subpoenas, issuing a statement that read: 

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.

There’s a significant difference between “all sermons related to homosexuality” and “sermons related to the HERO petition process,” and the latter is something that the city, in defending the lawsuit, has some legitimate claim to: As part of the 501(c)3 tax-exempt status that churches enjoy, they’re restricted from engaging in electioneering from the pulpit. What that specifically refers to is important to consider. A pastor whose sermon talks about why he opposes a law that would require, say, hotels to rent rooms to same-sex couples can be distasteful on a moral level, but it’s not relevant to the lawsuit. A pastor who used the pulpit to explain the proper way to fill out the HERO recall petition might be. 

At the Washington Post, UCLA law professor Eugene Volokh explores this more fully: There’s no precedent that says that sermons are exempt from subpoena the way that, say, membership lists of certain organizations might be, but there’s also no reason for the city to demand documents that have no bearing on the suit itself—and making those demands can lead pastors to feel as though their right to give sermons that deal with homosexuality, gender identity, or Annise Parker are at risk. 

While Parker has backed off from the scope of the subpoenas, the city stands by its right to issue them in the first place. As the Houston Press explains:

On Tuesday, Feldman took a tough stance when he talked to the Chron‘s Katherine Driessen. Feldman (neither he nor the mayor’s office returned our calls) referred to a video that surfaced this summer, showing Welch, pastor of Bear Creek Church and director of the Houston Area Pastor Council, leading his flock through the anti-HERO petition signature-gathering process. “If someone is speaking from the pulpit and it’s political speech, then it’s not going to be protected,” Feldman told the daily.

This post has been edited. 

(AP Photo/Houston Chronicle, Michael Paulsen)