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Commissioner Kirsanow Sends Letter to Houston Mayor Regarding Religious Liberty

This morning, Commissioner Peter Kirsanow of the U.S. Commission on Civil Rights sent a letter to Houston Mayor Annise Parker. Commissioner Kirsanow expressed his concern regarding the city’s decision to subpoena numerous documents from area pastors regarding their views on, among other things, the city’s equal rights ordinance, civil rights, homosexuality, and gender identity. Commissioner Kirsanow wrote:

A subpoena that requires a pastor to turn over an e-mail to his neighbor about the details of the Equal Rights Ordinance, or a draft book chapter on the Bible and homosexuality that discusses the Equal Rights Ordinance, is clearly overbroad. Yet both of these documents come within the ambit of the discovery request in the subpoena. Both the e-mail and the draft come within the definition of “documents,” and the subject matter would come within at least one item on the lengthy list.

No government entity should be in the business of requiring private citizens to turn over private communications about the issues of the day.Obviously this discovery request would tend to have a chilling effect on political speech, which is the speech subject to the greatest First Amendment protection. When he is out of the pulpit, a pastor has the same free speech rights as any other person. “[P]olitical speech must prevail against laws that would suppress it, whether by design or inadvertence.” Still more must political speech prevail against discovery requests designed to discourage pastors from publicly opposing the City’s preferred policies.

Furthermore, in this instance it is impossible to disentangle the religious aspects of much of the speech from the political aspects. Discovery request 1.m. requests any documents related to the Equal Rights Ordinance and “the topics of equal rights, civil rights, homosexuality, or gender identity”. Given that the recipients of these subpoenas are pastors, it is almost inevitable that their views on homosexuality and gender identity are informed by their faith, if not almost entirely rooted in their faith. Indeed, the views of many people on homosexuality and gender identity are rooted in their ultimate commitments. A person’s religious views on civil rights, equal rights, homosexuality, and gender identity have nothing to do with whether there are enough valid signatures to place a referendum on the ballot. Neither does the pastors’ understanding of the ordinance or petition have anything to do with the number of valid signatures. This discovery request impermissibly probes the religious beliefs of private citizens simply because they supported a political effort. [citations omitted]

The entire letter is available here.

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