Tag Archives: LGBT Rights

What’s Happening in Houston?

When I first saw the story, I dismissed it as a hoax. The City of Houston had served subpoenas on local pastors who had participated in a petition drive against a city ordinance, known as HERO, which prohibits discrimination against LGBT persons. The subpoenas demanded that the pastors 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.”

What could justify such an intrusive request? Not only the pastors’ own statements – that would be troubling enough – but statements the pastors had revised, or approved, or just kept in their possession, about homosexuality and gender identity. And about the mayor herself. There must be more to the story, I thought.

It turns out there is a bit more to the story— but the episode is nonetheless very unsettling. When the city rejected the petition on the ground that the signatures were invalid, some opponents of HERO – not the pastors themselves – challenged the city’s decision in court. The city issued the subpoenas in connection with that litigation. The theory, as I understand it, is that because these pastors helped organize the petition drive and hosted meetings, the pastors’s statements about the petition are important. I guess the idea is that the pastors may have said something that induced phony signatures.

Now, given the rules of pretrial discovery, one must concede that there is some plausibility in the city’s argument – some. In an American lawsuit, attorneys can ask for all sorts of information before trial, even if that information is not strictly relevant to the litigation, as long as the information seems reasonably likely to lead to relevant and admissible evidence. This broad standard is meant to allow parties to uncover all the facts. So when the city says it would like to know what the pastors may have said about the petition drive itself, that’s not a completely untenable position, given the freewheeling rules of American pretrial litigation.

But there are other very important considerations. The broad standard for discovery can lead to so-called “fishing expeditions” that seek to harass and intimidate litigants and encourage them to back off. As a result, courts generally have wide discretion to reject requests for information that are overly broad and unduly burdensome to the opposing party. In a context like this one, which raises very sensitive First Amendment concerns, courts must be especially careful.

The pastors have moved to quash the subpoenas. They should and will likely succeed, largely if not completely. Indeed, in response to complaints, including from some defenders of LGBT rights, Mayor Parker and the Houston City Attorney have already indicated that they think the subpoenas are too broad and should be rewritten. (They blame the misunderstanding on pro-bono attorneys the city retained to handle the litigation.) Maybe the court will allow subpoenas with respect to statements directly related to the petition drive, but that’s as far as it’s likely to go. I wonder if the court will allow even that.

Still, even if these pastors succeed in resisting the subpoenas, significant damage has been done. It’s hard to see how this episode will not chill religious and political expression. Most people, quite rationally, want nothing to do with lawsuits and subpoenas. They don’t want to make legal history. The lesson they will draw from the episode is this: if you want to avoid trouble, don’t make politically-charged statements about religious convictions that the government doesn’t approve, even if you’re at a private meeting in your own church. In fact, don’t revise or retain such statements. Otherwise, who knows? You may one day have to lawyer up.

European Court’s Judgment in UK Religious Freedom Cases: A First Read

Today, a chamber of the European Court of Human Rights announced its decision in the highly-anticipated Eweida and Others v. United Kingdom, a group of four consolidated cases brought by British Christians who alleged that the UK had violated their religious freedom under the European Convention on Human Rights. From the claimants’ perspective, the outcome was, at best, mixed: the chamber ruled in favor of only one of the four claimants. With respect to the other three, the chamber accepted the government’s argument that important countervailing interests, including the protection of gay rights, outweighed concerns about religious freedom.

The claimants alleged that their employers had violated their religious freedom by disciplining them for manifesting their Christian beliefs. Nadia Eweida, a British Airways employee, and Shirley Chaplain, a hospital nurse, complained that their employers had forbidden them from wearing cross necklaces at work. Lillian Ladele, a public registrar, lost her job when she declined, out of religious conviction, to officiate at civil partnership ceremonies for same-sex couples. Gary McFarlane, a psychotherapist, was fired by a sex counseling service because of his objections to providing sexual advice to same-sex couples. British courts had ruled against all four claimants, who then applied to the European Court for relief.

I won’t get into the details of the analysis here, but, briefly, the European Convention provides that individuals have the right to manifest their religious beliefs, but that governments may limit that right if necessary to protect important countervailing interests, such as public health and “the protection of the rights and freedoms of others.” With respect to the first two claimants, the chamber held that Continue reading

“Common Sense, Not Discrimination”

That’s the verdict of the Student Judiciary at the State University of New York at Buffalo, which has reinstated the local chapter of Intervarsity Christian Fellowship as a campus student organization. Earlier this year, the Student Senate had revoked recognition because of Intervarsity’s requirement that leaders in the organization affirm traditional Christian beliefs, including beliefs about homosexuality. Last December, the chapter’s  treasurer, who is gay, told the university’s student newspaper that he had been pressured to resign because he would not sign a statement affirming the truth of Biblical passages, including passages condemning homosexual conduct. The Senate believed this episode showed that Intervarsity violated the university’s non-discrimination policy, but the Judiciary disagreed, arguing that one must distinguish between membership and leadership in a student organization. Intervarsity was open to all SUNY-Buffalo students, including gay students, the Judiciary explained; but  “it is common sense, not discrimination, for a religious group to want its leaders to agree with its core beliefs.” Similar disputes about the religious freedom of student groups have occurred recently at other American universities, including Vanderbilt, and of course, UC-Hastings Law School, the subject of the Supreme Court’s 2010 ruling in CLS v. MartinezMartinez held that an “all-comers” policy requiring student religious organizations to open their leadership to all students regardless of belief is constitutionally permissible. That’s not to say an all-comers policy is constitutionally required, however.

Chick-fil-A and the Coming Clash

That was fast. Last week, Mayor Thomas Menino announced that, because of COO Dan Cathy’s comments in favor of traditional marriage, Boston would not allow Chick-fil-A to open any restaurants in that city. Chicago Mayor Rahm Emanuel followed with similar statements. “Chick-fil-A values are not Chicago values,” he declared. The response from commentators on both the left and right was uniform and swift. Government cannot deny licenses because businesses express political opinions with which government disagrees: that’s what the Free Speech Clause is about. By this week, Menino had backed down, and New York’s Mayor Mike Bloomberg, a supporter of same-sex marriage, had distanced his city from the anti-Chick-fil-A campaign. The crusade to shut down Chick-fil-A seems to have ended, at least for now.

Consumers have every right to organize a boycott because they disapprove of what a firm’s COO has to say. Such boycotts typically fail, however, because of collective action problems. It’s hard to organize these things; most consumers simply don’t care enough about politics to have it drive their purchasing decisions. In the 1990s, conservatives failed when they tried to boycott Disney because of its support for gay rights, and liberals failed when they tried to Continue reading

Tuck on LGBT Equality

Ryan Tuck has posted Parting the Red Sea: The Religious Case for LGBT Equality, on SSRN. The abstract follows.

Much of the LGBT legal equality movement has focused on non-religious arguments. While that has netted gains in a purely legal sense, the broader – and more desirable – goal of social equality will remain elusive if the LGBT movement does not turn the religious argument around. In other words, LGBT proponents need to understand how to utilize religion to forward their causes, rather than ignore how opponents use it on the other side.