[NOTE FROM TIM BAYLY: A few minutes after I published my piece, "No, we did not misunderstand Mayor Parker's subpoenas...," longtime Baylyblog contributor, Craig French, asked me to review this piece he wrote. Reading it, I realized we'd both been working on opposing pieces without knowing it. So I simply changed the title of Craig's piece to make the point/counterpoint obvious, and now I'm publishing it. Please keep in mind neither of us knew the other was writing, nor what he would say. And yes, I'm happy for Craig's piece. Iron sharpens iron.]
[NOTE FROM CRAIG FRENCH: Having read Tim's piece, I would, if I had some time, re-write the below to highlight where my take diverges significantly from Joel McDurmon. Subpoenas are a normal part of discovery, but it a gross exaggeration to imply Houston's request is semi-reasonable. As-written, the subpoena is too wide, unduly onerous, and clearly intended to intimidate. Even so, it can only be effective insofar that it relates to the subject matter of the lawsuit and if pastors cower in fear that they could be next]
There are some troubling aspects to the latest brouhaha in Houston. Obviously it is beyond troubling that the city rejects the truth of God regarding man as man and woman as woman. But there are also troubling aspects as to how the narrative is being shaped certain evangelical machines - those who stand to gain from the PR. Here's how the ADF does its own reporting:
The pastors are not party to the lawsuit. Asking them to turn over their constitutionally protected sermons and other communications simply so the city can see if the pastors have ever opposed or criticized the city, violates the First Amendment.
Compare that to the motion they filed. Obviously the pastors' sermons are constitutionally protected...but is the city putting these pastors on trial for the content of their sermons? No. The city of Houston is a defendant in a lawsuit stemming from their (likely illegal) stance that the HERO petition had falsified signatures. Let that sink in: Houston is defending itself. These pastors are not being prosecuted. This is a matter of civil litigation where the subject matter is not the restriction of speech content, rather, the the way the petition drive was handled.
From the way news outlets are reporting, you'd think this was an issue of religious freedom. The ADF's motion to quash provides a helpful example of where the issues are actually situated. You'll notice, not one of them is rooted in religious liberty. Primarily, the motion is rooted in:
1. the subpoena being overly broad, irrelevant, and causes undue burden or harassment.
2. certain information being sought is protected by the First Amendment privilege governing discovery of nonpublic documents and communications relating to a political campaign and political strategy.
3. materials are protected by the deliberative-process privilege, the attorney-client privilege, and the work-product doctrine.
What's missing? Religious liberty stemming from the First Amendment. Reports would have us believe that sermon content is being dictated here. Other reports make it appear that the pastors are being prosecuted criminally based saying boohoo to the mayor and H.E.R.O. This is a civil case where Houston is on the defensive: they're casting a wide net for at least one of two reasons: 1) that's how the discovery phase of civil litigation often goes; 2) Houston has nothing to go on with regard to their stance that the petition had falsified signatures.
I'm not suggesting these pastors hand over everything being asked - of course they should not. The ADF's motion is spot-on. Let's not be whipped into a frenzy by those who would gain from our frenzy. Evangelicals are quick to send money where they think the battle is situated. Follow the money. Meanwhile, Christians are whipped into a frenzy, some angry, others fearful. Wouldn't it be something if one of the subpoenaed pastors prophesied in the spirit of John Knox? Yet no man has responded with a simple faith that might say something like this:
"Ms. Mayor, have you checked the sermon archives at our websites? You may listen to them there using the faculties for which they were delivered - your ears. May God give you ears to hear!"
Or better yet, do as Pastor Wilson suggested.:
Houston demands sermons from pastors for review. The pastors should go down to city hall, one a day, and preach those sermons live.
Alas, not even one John Knox. PR folks like, an opportunity to prophesy...not so much. There is reason to be hopeful with regard to the lawsuit rather than fearful. Houston is on the defensive. They're going to be exposed for their unlawfulness, meanwhile....why are so many seeking cover as though there is no Judge in Heaven?
A college friend linked to an article by Russell Moore on facebook. It's a strange mixture of error and baptistic retreat covered by grandstanding. After challenging my friend, he asked me where Dr. Moore stated things wrongly. Here they are as follows:
Error 1: "The obvious violation of basic American principles of religious liberty and separation of church and state"…
Truth: This isn’t about religious liberty, please see the ADF’s motion to quash.
Error 2: "The problem with this view is that Romans 13 is not an unlimited authority. Paul clearly bounds in the power of Caesar’s sword to the punishing of 'wrongdoers' (Rom. 13:4)"…(the implication being that this is an issue of the civil government seeking to punish)
Truth: This is a civil litigation where the city is the defendant. A lawsuit cannot impose punitive measures as lawsuits are not the same as criminal prosecution. No pastor is being prosecuted.
Error 3: "Every authority, under God, is limited. Daniel is obedient to King Nebuchadnezzar, until the king decreed the way prayers should be offered. Peter and John are obedient to the authorities, until they are told how to preach, in which case they defy this authority (Acts 4:19-20)." (the implication being that the civil authority is telling these pastors how/what is permissible to preach)
Truth: This is a lawsuit where the city is the defendant. The non-party pastors are not being scrutinized for prosecution, rather, the defense is fishing for some semblance of wrongdoing with relation to falsified petitions.
Error 4: "As citizens, we bear responsibility for electing officials, for speaking to laws that are made in our name, and for setting precedents by our actions. Shrugging this off is not the equivalent of Jesus standing silently before Pilate. It’s the equivalent of Pilate washing his hands, so as not to bear accountability for our own decisions and precedents set."
Truth: This is manipulative grandstanding. We are not kings, we are under authority of our elected officials. The analogy of Pilate washing his hands merely evokes a gut response…try playing out that analogy. In what sense are we, the people, hearing a case? Is Dr. Moore trying to argue that the courts are found in the people? Or is he talking merely about the court of public opinion? So who is it we’re battling? Public opinion or a subpoena?
Error 5: "When the government acts, legal precedents are set."
Truth: this is a civil litigation where the pastors are a non-party.
Error 6: "By complying with this unjust decree"…
Truth: This is not a decree of law where sermons by their very nature are subject to government approval; this is a subpoena where there are civil rules of procedure for quashing! Which is exactly what was filed on behalf of these pastors by the ADF.
Error 7: "Christians would be binding future people and institutions, including those who are the most powerless to stand against such things."
Truth: The only precedent set (if the pastors complied without resistance) would be these pastors are dumb. One might argue more accurately that making a motion to quash opens the doors for potential legal precedent to be set if it were to fail. The ADF knows that, which is why they focused on the real issues in that motion.
Error 8: "If the government can scrutinize the preaching of Christian churches on sexual matters in Houston, the same government could do the reverse in, say, Amarillo."
Truth: Dr. Moore acts as if the subpoena emerged from a vacuum. It arose from civil litigation in which the city of Houston is the defendant; not the one prosecuting a criminal case.
Error 9: "That’s quite different though from those who have been given police authority ignoring assaults; such is injustice decried by Scripture. And it’s quite different from a soldier forcibly collecting cloaks because 'you ought to be giving those up anyway.'”
Truth: See answers to Errors 2, 3, 5, and 6. Again – this is not about policing, that is, it is not about criminal jurisprudence.
Error 10: "Religious liberty isn’t ours to give away to Caesar, and soul freedom isn’t subject to subpoena from City Hall."
Truth: This isn’t about religious liberty. See responses to errors above.
