Houston Sermon Subpoena a Warning to 501(c)3 Churches

After the outrage bomb went off over what many considered an illegal subpoena of sermons from five Houston pastors, the city has apparently backed off. Which means it has merely narrowed the scope of its subpoena:

The city had asked five pastors for “all speeches, presentations, or sermons” on a variety of topics, including the mayor, and “gender identity.”

The subpoena prompted a storm of criticism when it became public Tuesday. The pastors are involved in legal efforts to overturn the Houston Equal Rights Ordinance, also known as the “bathroom bill.” . . .

The statement says the city will “move to narrow the scope during an upcoming court hearing” and that city attorney David Feldman “says the focus should be only on communications related to the petitions to overturn the ordinance.”

Joe La Rue, legal counsel for the Alliance Defending Freedom, which has moved to quash the subpoenas, called the mayor’s turnaround “wholly inadequate.”

For those who have been living under a rock for the past couple of days, let me explain the situation:

  1. Houston passed a law aimed at “Gender Equality” that allows a transgender person to use the bathroom of his (or her … or shis or hir or its?) choice.
  2. Local pastors were upset, since the law basically meant men and women could conceivably be in the same bathroom. Which is not cool.
  3. Local pastors set up a petition to get a referendum on the next ballot voting on the so-called “bathroom” bill.
  4. A city clerk certified that the petition had received enough signatures (it needed 17,269 signatures, the petition received about 55,000 signatures), which meant the bathroom bill would be voted on by the people.
  5. The city (essentially the mayor—who is a lesbian) threw out the petition, saying that some of the signatures were invalid.
  6. Some of the petition architects sued the city.
  7. The city responded by issuing a subpoena (for the purposes of discovery) of at least five Houston pastors (none of whom were party to the lawsuit) to make a determination, somehow, of whether the allegations of the lawsuit were valid.
  8. The internet.

Notice anything weird? Why would the city need to see the pastor’s sermons? What difference could that make in this case? Well, a big difference actually. Let’s think this through together.

First, this subpoena is not an attempt to restrict First Amendment rights per se. Lots of people have said that. This subpoena isn’t the problem. Do you know what is? 501(c)3 status. And I imagine each of these churches already voluntarily applied for 501(c)3 status long before this subpoena was issued. Why does that matter? Well, consider what the IRS has to say about what 501(c)3 organizations are not allowed to do politically:

In general, no organization may qualify for section 501(c)(3) status if a substantial part of its activities is attempting to influence legislation (commonly known as lobbying).  A 501(c)(3) organization may engage in some lobbying, but too much lobbying activity risks loss of tax-exempt status.

Legislation includes action by Congress, any state legislature, any local council, or similar governing body, with respect to acts, bills, resolutions, or similar items (such as legislative confirmation of appointive office), or by the public in referendum, ballot initiative, constitutional amendment, or similar procedure.  It does not include actions by executive, judicial, or administrative bodies.

An organization will be regarded as attempting to influence legislation if it contacts, or urges the public to contact, members or employees of a legislative body for the purpose of proposing, supporting, or opposing legislation, or if the organization advocates the adoption or rejection of legislation. [Emphasis mine.]

Are you seeing the strategy yet? If these pastors actually encouraged people from the pulpit to sign this petition, what they were doing actually was illegal, and that could potentially disqualify a great number of the petition signatures and jeopardize the tax-exempt status of these churches.

Which means the original subpoena is legal and reasonable. Honestly. If these churches are 501(c)3, it does matter whether or not these pastors and their churches lobbied for this referendum—whether or not the pastors are party to the lawsuit.

So the city of Houston didn’t start this First Amendment restriction. These churches did when they signed up for tax-exempt status. They can’t whine about it now. They need to drop 501(c)3 status. Refuse to pay taxes because of the jurisdictional separation of church and state. Not because you are an IRS-designated tax-exempt creature of the State. Bump that.

Once you drop 501(c)3 status, you can encourage and lobby for whatever you want from the pulpit. Wake up, people. The political restriction of churches has been going on for years. And we have largely no one to blame for it but ourselves.