WWJD – What Would Jefferson Do?

Subpoenaed Sermons and the New Legal Landscape for Churches

The City of Houston is known for many things. Cowboy boots. Large energy companies. Hakeem Olajuwon. Hot, humid summers. Joel Osteen and his Texas-sized Lakewood Church. But unlike Berkeley, California or perhaps Boston, Massachusetts, Houston is not known for being hostile toward churches and pastors. After all, the City is located within the Republic of Texas, right?

Houston’s HERO and Subpoena

Like many parts of the country, the City of Houston is changing. Recently Houston served as a locational flash point for the developing animosity toward local churches and pastors. Houston leaders wanted to pass the Houston Equal Rights Ordinance (HERO), a piece of legislation aimed at providing protections to the LGBTQ community. Specifically, the City of Houston proposed legislation that prevented owners of restaurants, bars, entertainment venues, and hotels from intentionally distinguishing between individuals “on the basis of a protected characteristic.” Despite the exemption provided to churches in the ordinance, many pastors and local church leaders opposed the ordinance, arguing that it contradicted biblical principles.

After the ordinance passed, the local religious community tried to repeal the law, and Christian activists filed suit against the City. As fate would have it, the faith-based opposition to the ordinance upset Houston’s political establishment, including Mayor Annise Parker – one of the first openly gay mayors of a major U.S. city.

During the lawsuit, city attorneys issued subpoenas to local churches and pastors, asking them to turn over: “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 subpoenas issued by city attorneys left many speechless.

WWJD – What Would Jefferson Do?

To properly explain the subpoena-based surprise, a little history is helpful. Much has been written and debated about the “separation between church and state.” You may or may not be aware, but the United States Constitution never expressly uses the phrase.  Not once.

In fact, the phrase comes from a letter that Thomas Jefferson wrote to the Danbury Baptist Association of Connecticut.  In that letter written on New Year’s Day, 1802, Jefferson tried to assure the Connecticut Baptists that their rights to freely exercise the religion of their choice would never be trampled by the government. He wrote:

“Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”

Jefferson’s letter provides context for understanding the purpose of the doctrine.

“Wall of Separation” Applied

As an initial matter, the “wall of separation” of which Jefferson speaks comes from the First Amendment to the United States Constitution.  The First Amendment states, in pertinent part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech….” While I am sure you have read that language before (maybe in high school civics class!), a reminder to refresh your recollection is probably in order. The bricks and mortar comprising the “wall of separation” – at least when read in the context of Jefferson’s letter to the Connecticut Baptists – were erected, at least in part, to fence out the government from interfering with the Church’s affairs.

Many historians and commentators on both sides of the Houston debate have focused on the phrase “wall of separation” in Jefferson’s letter without paying much attention to the paragraph preceding the wall of separation line.  Jefferson says that religious belief is a very personal and private quest – “Religion is a matter which lies solely between man and his God….[and] he owes account to none other for his faith or his worship; that the legislative powers of government reach actions only and not opinions.” The City of Houston attempted to remove several bricks from the wall of separation by requesting all speeches, presentations, or sermons related to homosexuality or gender identity prepared or approved by local pastors.

Luckily, and following a national outcry, Mayor Annise Parker rescinded the subpoenas. The wall of separation remained intact. For now. What about your church and city? What about your sermons? Will your opinions and deeply-held beliefs fall under legislative control or judicial interference from the courts?

My path to the practice of law is unique. Prior to becoming an attorney, I spent a number of years serving in ministry at several Cincinnati-area churches. In all my years of pastoral experience, I would have never anticipated the First Amendment issues presently confronting churches.  Should you ever have a question about how your church should handle a legal situation, please do not hesitate to contact me directly at (513) 852-6071 or by emailing me at bwfox@woodlamping.com.

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