TOTALLY GEEKED!

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.

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 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."

To that end, Feldman said the pastors made their sermons relevant to the case by using the pulpit to do political organizing. That included encouraging congregation members to sign petitions and help gather signatures for equal rights ordinance foes, who largely take issue with the rights extended to gay and transgender residents.

Training video

Feldman pointed to a training video that surfaced this summer showing Welch, of the Houston Area Pastor Council, explaining the rules signature gatherers needed to follow during a church presentation. With aPowerPoint presentation behind him, Welch tells the audience the city's stringent repeal referendum process "makes it more challenging for us" to qualify for the ballot.

Ordinance supporters said the video proved the signature gatherers were aware of the rules but flouted them anyway.

"If someone is speaking from the pulpit and it's political speech, then it's not going to be protected," Feldman said.

Plaintiff Jared Woodfill disagreed, saying the subpoenas impinge on protected religious freedoms.

"This is the city trampling on the First Amendment rights of pastors in their churches," said Woodfill, a former chairman of the Harris County Republican Party.

Woodfill and other critics pledged to take the issue to the voters after the City Council approved the ordinance in May, banning discrimination among businesses that serve the public, private employers, in housing and in city employment and city contracting. Religious institutions are exempt.

City Secretary Anna Russell initially counted enough signatures to qualify the opponents' petition, with about 600 more than the required 17,269 signatures. Feldman then looked through all of the petition pages to see if those who gathered signatures met city charter requirements - namely, whether signature gatherers were Houston residents and whether they signed the petition pages.

That process disqualified more than half the 5,199 pages. In their suit, opponents claimed Russell's original count should be the most important one and alleged Feldman had inserted himself into the process illegally.

Filed appeals

In August, opponents agreed to drop their request for an emergency temporary injunction, aimed at forcing a referendum this November. The group has filed several appeals in an effort to expedite the case, including a pending appeal at the Texas Supreme Court.

The subpoenas, however, are tied to the January district court date and request more than just sermons. The requests touch on a wide range of communications among the pastors, with their congregations and with city officials about the ordinance, including "any discussion about whether or how HERO does or does not impact restroom access."

Opponents frequently have cited the perceived threat of male sexual predators dressed in drag entering women's restrooms, dubbing the measure the "Sexual Predator Protection Act."

The ordinance protects transgender residents' ability to use the restroom consistent with their gender expression, regardless of their biological sex, but puts the onus on the individual to prove he or she was a victim of bias.

The city also is seeking any information about payments and incentives offered to people contracted to circulate the petitions, and the tax information associated with those payments.

The city does not intend to back down from its request and is working on a response to the Alliance Defending Freedom's motion, Feldman said.

http://www.houstonchronicle.com/news/houston-texas/houston/article/City-subpoenas-sermons-in-ERO-court-case-5822800.php