Deciding to disagree with Dr.
Albert Mohler finds me in an awkward position.
I am a student at Southern Baptist Theological Seminary and generally
agree with him on so many things.
Nonetheless, his recent column about the Houston subpoena problem doesn’t
fully hit the mark.
Dr. Mohler, like many others,
including Dr. Russell Moore of the SBC’s Ethics and Religious Liberty Commission,
appear to place significant emphasis on the pastors who received the subpoenas not being parties to the
litigation. However, in itself, there is nothing troubling
about a party to civil litigation issuing a subpoena to a non-party. This happens in cases across America
thousands of times a day. Being a
pastor, in itself, doesn’t exempt one
from receiving a subpoena, nor does it exempt one from being required to
respond to a subpoena. The implication
from Dr. Mohler’s column (and others) that somehow even issuing the subpoena is
problematic misunderstands the nature of what such subpoenas are and how they
are used in civil litigation. As an
attorney who has issued literally thousands of such subpoenas over the years, I
can assure Dr. Mohler and the many others whom this troubles that there is
nothing at all nefarious about requesting subpoenas to people who are not
parties to the litigation.
That said, I fully agree with Dr.
Mohler that the city of Houston has done this purely as a bullying tactic in an
effort to silence its critics. I have
seen subpoenas like this used as a bullying tactic and am fully aware of the
costs that go into either defending against or even replying to such subpoenas. These pastors will now each need to have an
attorney file objections in order to have a judge rule on whether compliance
will be required, and, if so, to which parts of the subpoena. Hopefully, there will be attorneys who will
handle these matters without fee so as not to financially burden either the
pastors or their churches. But, of
course, this is part of the tactic. The
city of Houston is a sophisticated litigator and it is unlikely any of the
pastors or their churches are. Moreover,
the city has several lawyers, including some from the powerhouse firm,
Fulbright and Jaworski. No doubt part of
the strategy is to suggest to the pastors that if they’re going to play “with
the big boys” they need to be ready to get hammered.
Dr. Mohler and others seem very worried
about the requests for sermons. Frankly,
I’m much less concerned about the city wanting the text of sermons than I am
about the city asking for communications between the pastors and their
congregations, or about communications between the pastors and other private
citizens regarding their concerns about the City of Houston’s so-called HERO
ordinance. Many pastors post their
sermons on-line and there shouldn’t be anything in those sermons that any
pastor should be afraid to share publicly, right? Since when, however, has the government
obtained a right to delve into the communications that go on between private
citizens about political and theological issues? It’s one thing for the city of Houston to ask
for relevant documents that relate to the issues germane to the lawsuit; it’s
another altogether to ask for text messages between a pastor and his
parishioners about the ordinance (which is one of the things the subpoena
requests). The pastors should seek to
have the court rule that these requests are completely off limits as violating
both the religious liberty and free speech clauses of the First Amendment.
As Christians, we have to be
careful, though about complaining too loudly.
Remember, the city of Houston has been sued. The city, through its officials, does have a
right to defend itself. Part of the
process of defending itself is issuing third party subpoenas in order to find
information that can help it in its defense.
We should be cautious in decrying the use of this very ordinary
litigation tool as some sort of evil in itself.
This is part of the system we have in place for litigating
disputes. Frankly, we should be in awe
of our system that allows parties to civilly
work through a dispute rather than resorting other more troubling means,
such as bloodshed, which still happens in many parts of the world.
One of the things we should
recognize here is that the system will work.
The pastors will have an opportunity to argue to a Judge that the
subpoenas are too broad based on the ordinary rules of court and are
unconstitutional. It seems reasonably
likely to me, based on the language, that much or all of these subpoenas will
be ruled overly broad, one way or the other.
I doubt we’ll see pastors being forced to give the city their text
messages or emails or even their sermons. The city will get its hand slapped.
Did the city overreach? Sure.
Should we have gotten so wound up?
Nope. I think as Christians we
missed the boat on this one. The better,
more reasoned approach would have been to argue that the system will work and we
fully expect a judge will see through these subpoenas and will not require
compliance. The sky is not falling
here. The city’s ham-handed effort to
fluster these pastors should have been allowed to play out through the system
before the commentary started flying around.
We just might have found ourselves pleasantly surprised. If not, then there would still be plenty of
time to vent.
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