Update (October 29, 2014): Sister site ChristianityToday.com reports Houston’s mayor has rescinded the five subpoenas after meeting on Tuesday with religious leaders.
Update (October 24, 2014): Since this interview first published on October 17, 2014, new details have surfaced. Attorney Frank Sommerville provided us this update:
“The city’s premise (with rejecting the petition) seems questionable. The city attorney now claims that the petition was invalid because it did not contain the required number of valid signatures. To be valid, the petition must contain at least 17,000 valid signatures. Out of the 55,000 submitted signatures, the city attorney voided 38,000 signatures because he claimed that they were (1) printed instead of written in cursive, and/or (2) illegible. This caused the petition to be invalid. This is after the city secretary reviewed the signatures and certified that it contained at least the minimum number of required signatures. If the only issue is whether the signatures are valid, even if the signature was printed and/or illegible (the names are printed next to the signature for identification purposes), the subpoena to the pastors appears to be politically motivated to moot the voices of the pastors.
It will be very difficult to now claim that the pastors possess relevant knowledge as to whether the signatures should be valid as a matter of law.
On a related note, the petition drive challenging the ordinance recently passed in Fayetteville, Arkansas, which requires the matter be put to a general vote, continues to move forward. On October 24, 2014, the Fayetteville court ruled that the signatures were legible enough and ordered that the election take place in December.”
A months-long conflict between city leaders and religious leaders in Houston captured the national spotlight this week after the city attempted to obtain sermons, e-mails, and other records from five churches through subpoenas.
Religious leaders nationwide and at least one prominent state official quickly cried foul, citing religious liberty concerns. On Friday, the city issued new subpoenas, slightly narrowing the focus to any communications between the churches and their members during a petition drive challenging Houston’s recently passed equal rights ordinance.
The ordinance was signed into law in May and “among other things, grants transgender people access to the restroom of their choice in public buildings and businesses, excluding churches. It has not yet been implemented,” as reported by our sister site, ChristianityToday.com.
Hundreds of churches organized soon after and started the petition drive with the hopes of putting the matter before voters, and although the petition collected triple the number of required signatures, the city ultimately rejected it. The churches filed a lawsuit challenging that rejection.
The city subpoenaed the churches this week as a part of its discovery process for the lawsuit.
Attorney Frank Sommerville, an Editorial Advisor for Christianity Today’s Church Law & Tax Group, is a partner with Weycer, Kaplan, Pulaski & Zuber, which has offices in Dallas and Houston. We interviewed him via e-mail to learn more about what is happening—and what church leaders nationwide should note.
Branaugh: Can you briefly explain what has transpired over the past several months?
Sommerville: I have not been involved because Alliance Defending Freedom is representing the pastors on a pro bono basis, but I have been watching the situation for quite a while. This confrontation has been building for a long time. I reviewed the proposed ordinance and provided comments to my church clients. I reviewed the enacted ordinance and provided my church clients with guidance. It contains a specific exclusion for churches and religious organizations.
Even with the exclusion, some pastors openly opposed the ordinance because it would negatively affect businesses owned by members of their church. They held open rallies to oppose its adoption. They assisted with securing the petition signatures to have the ordinance placed on the ballot for a public vote. The city secretary approved the petition, but the city attorney and mayor rejected it. The lawsuit was filed by several individuals seeking a declaration that the city attorney and/or mayor did not have the authority to reject the petition. This dispute has gotten very nasty.
Branaugh: Houston officials said that because petition signatures were secured on church properties, the subpoena was justified. Was it?
Sommerville: Since the lawsuit is challenging the decision by the mayor and city attorney that the signatures did not meet the requirements contained in the city charter, one can argue that the manner in which the signatures were secured is a valid subject for a subpoena.
Branaugh: So this move shouldn’t have been a surprise?
Sommerville: If the pastors misled the voters signing the petition, then the mayor and city attorney may have sufficient grounds to support the subpoena. Basically, the mayor and the city attorney must believe that the signatures were improperly secured. One way that the signatures could be invalid is if pastors committed fraud or mislead the public in securing the voter signatures. Every statement the pastors made regarding the petition is fair game for a subpoena.
Branaugh: What should church leaders learn from this then?
Sommerville: If pastors and churches get involved in political issues, they need to be aware that lobbying is regulated by federal and state law. The church and the pastor need to determine whether they need to register as a lobbyist with the appropriate authorities. They may need to file reports with the same authority. The church needs to track the costs and activities so that it can defend itself if a lawsuit is filed or an examination by a taxing authority is initiated.
Branaugh: Some church leaders may hear that and say those extra steps will only intimidate churches not to speak out.
Sommerville: Churches can address moral and cultural issues through their publications and sermons. That communication is protected speech. It becomes something different when the church is calling its people to take a certain action (such as signing a petition) regarding those moral and cultural issues. Once the action is identified, it can become lobbying, subject to lobbying statutes and regulations. It is a fine line that many pastors fail to appreciate. In this case, it is entirely appropriate for the pastors to address the issue of homosexuality, transgender, and sexual perception. It is an entirely different action to call on the church members to sign a petition challenging a city ordinance. Once a pastor suggests that church members sign a petition, his actions become lobbying. That may cause the church to be required to register as a lobbying organization.
In the course of lobbying, the proponents and opponents of the ordinance are given some leeway in their descriptions of the ordinance. However, if the pastor misleads the members by misrepresenting the contents of the ordinance, that misrepresentation allows the opposition to challenge the petition.
The mayor and city attorney unilaterally voided the petition without giving a reason. The city charter only requires that the city secretary verify that the signatures are from voters within the city. There is no formal way to challenge the petition absent fraud or misrepresentation. As a result, some individuals filed a lawsuit challenging the mayor and city attorney’s decision to void the petition. The five pastors who have been issued a subpoena are not parties to the lawsuit but were very visible and vocal in their opposition to the ordinance. While I do not know, I assume that the churches where the pastors are serving were actively involved in securing signatures on the petition.
Branaugh: You mentioned lobbying is regulated by federal and state law. What about the Internal Revenue Code’s restrictions placed upon nonprofit organizations, including churches, for certain political activities? The monitoring of church political activities by the Internal Revenue Service appears to have resumed, as we have recently covered. Will the efforts of the Houston churches also draw IRS scrutiny?
Sommerville: This activity is clearly allowed by churches without jeopardizing their tax-exempt status. This activity is not even in the gray area. The IRS is not likely to get involved with a local church who is lobbying on a local issue. I have seen dozens of petitions at churches supporting or opposing local ordinances.
Branaugh: Are we seeing ordinances similar to the one in Houston put forth by other municipalities?
Sommerville: I just received a call this week from a church leader in Fayetteville, Arkansas. The city council there passed an anti-discrimination ordinance similar to Houston’s in August. It also contained a religious exemption, but a successful petition drive there caused the city to schedule a special election in December. In October, a lawsuit was filed requesting the court to block the December election due to alleged irregularities in the petition. The issues are very similar to the Houston suit, except the lawsuit was filed by opponents to the election, while Houston’s suit was filed to require the city to call the election.
Branaugh: You noted Houston and Fayetteville’s ordinances contained a religious exemption that includes churches. What would happen if such an ordinance advances somewhere and it doesn’t contain such an exemption? In Fayetteville, for instance, the exemption was added only after an amendment was made moments before the city council voted.
Sommerville: I am not aware of any similar ordinances that do not contain a religious exemption, but if a proposed ordinance does not contain the exemption, and the ordinance is contrary to the churches’ teachings in that community, then those churches should marshal their influence to secure such an exemption.