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Subpoenaing Houston Pastors Part of A Larger Strategy

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 By Newt Gingrich and Vince HaleyBarbWire guest contributors

The Mayor of Houston’s recent subpoena of sermons by Christian pastors in the country’s fourth largest city is a shocking violation of First Amendment rights to free speech and free exercise of religion. There is no clearer violation of First Amendment freedoms than for government officials to attempt to censor religious speech.

Lawyers for the Christian pastors were prepared to sue to quash these subpoenas — and would have succeeded quickly in the courts on Constitutional grounds – when the Mayor withdrew the subpoenas amid an uproar of protest.

So why would Annise Parker, the Houston mayor, issue such subpoenas at all if a court would have stopped her from forcing the pastors to comply? Probably because she is playing for much larger political and constitutional stakes than the power to coerce disclosure of the communications five Houston pastors.

Her signature initiative–the so-called “bathroom bill”, a city ordinance that she championed and signed last May–is being threatened by a public campaign to repeal it in a referendum . The City has challenged the validity of the signatures the citizens collected to force a vote on the ordinance, which led a group of them to sue the City. Mayor Parker responded by subpoenaing five Houston pastors who oppose the ordinance, but who are not even parties to the lawsuit.

In politics, if politicians are not succeeding in their arguments, they change the subject. And Mayor Parker apparently is not succeeding in her defense of a law that opponents claim creates a right, among other newly created sexual and gender identity rights, for anyone to use public bathrooms of the opposite sex in the name of gender rights equality.

Losing her own argument, she’s changing the subject. And if you’re a liberal mayor trying to create new sexual and gender identity rights, there’s apparently no better object on which to refocus the public than the Christian pastors and their beliefs on gender and sexuality.

An attempt to set up the pastors as the foil to her radical agenda would explain the Mayor’s outrageous subpoenas, which demand, among other things, all of the pastors’ emails, texts, and sermons relating to the bathroom bill, the Mayor, the City attorney, restroom access under the bathroom bill, the topics of homosexuality or gender identity, and the petition drive to repeal the bathroom bill.

And it would explain the Mayor’s tweet the morning after the subpoenas came to light: “If the 5 pastors used pulpits for politics, their sermons are fair game. Were instructions given on filling out anti-HERO petition?” (“HERO” is an acronym for the “bathroom bill” ordinance.)

Clearly the Mayor is trying to shift the debate from a fight over the merits of her sexual and gender identity agenda to a fight over the Christian worldview of sexual ethics. That’s exactly what the subpoenas were intended to accomplish.

There are three reasons why she might have expected this to be effective.

First, Mayor Parker likely believed that issuing the subpoenas, even if later withdrawn, would cause Houston pastors to think twice about criticizing her or her bathroom bill. She would not be the first politician to harass and attempt to intimidate people with opposing beliefs. The right response to such intimidation is for citizens of all stripes to vote out of office those politicians who practice it.

Second, in the case of pastors, Mayor Parker is clearly aware that there is a provision of U.S. tax law that already tends to chill the speech of some pastors from the pulpit. Known as the “Johnson Amendment” because it was authored by then-Senator Lyndon B. Johnson, the statute states that tax-exempt organizations–churches, for instance–may not “participate in, or intervene in…any political campaign on behalf of…any candidate for public office.”

Although the 1954 Johnson Amendment is brazenly in conflict with the free speech and free exercise protections of the First Amendment, Mayor Parker implicitly threatens the churches’ tax-exempt status when she attacks pastors who dare to challenge her ideological agenda. Again the goal is to have pastors back off their criticisms. The right response to this long-standing threat is for Congress to repeal the Johnson Amendment at the first opportunity. Congressman Walter Jones (R-NC) has a very simple bill to do just that.

Third, there is now an established and successful political and constitutional strategy to paint the protection of traditional moral values — and opposition to newly-invented sexual and gender identity rights — as motivated by malice.

In the 2013 Supreme Court decision (United States v. Windsor) that invalidated Congress’ enacted definition of marriage as between one man and one woman, Justice Anthony Kennedy wrote in the majority opinion that the only purpose of those who supported this traditional definition of marriage was to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” certain groups of fellow citizens.

In a word, hate is all that Justice Kennedy sees when he encounters someone who supports a traditional definition of marriage. Under this newly-invented constitutional standard, if the Court feels today that a particular law is hateful, then the Court will simply invalidate the law, no further justification needed. And it will do so whether or not a vast majority of the public believes reasonable people can disagree about the definition of marriage in particular and about sexual ethics more generally.

We can be confident that Mayor Parker has taken note of Justice Kennedy’s insidious two-part strategy of (1) making skeptics of the left’s sexual and gender identity agenda into “enemies of humanity”, to paraphrase Justice Scalia, and (2) thereby ending political debate over these newly-invented sexual rights by declaring them constitutional rights beyond public debate. Mayor Parker’s attention-grabbing subpoenas of five Christian pastors seems intended to do just that – to persuade the public that ‘these are the hateful haters who oppose my agenda to conjure up new constitutional rights.’

In other words, under the Kennedy-Parker telling, if you are against the Mayor’s law to let anyone in America’s fourth largest city go into any bathroom he (or she?) wants on any given day, then you must be a hateful bigot–one of those intolerant Christians who hates people who don’t think like they do. In the Kennedy-Parker telling, you must be one of those Christians who are using their pulpits to ‘impose their beliefs on the rest of us.’

If this analysis is wrong, Mayor Parker can clear this up by answering these two questions:

1) Does she believe that everyone who does not support her bathroom bill is a hateful bigot?
2) Does she support a citywide referendum on her bathroom bill?

The right response to the supersized intimidation and anti-democratic pretensions of the Justice Kennedys and Mayor Parkers of this country is faithfulness on the part of Christians and a political awakening on the part of all citizens.

Newt Gingrich is a Former Speaker of the House and 2012 GOP Presidential candidate. Vince Haley is the Vice President of Policy at American Solutions.

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