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As LGBT rights expand, remember the First Amendment

Conflicts in Texas and Idaho in recent weeks have re-invigorated fears in conservative religious circles that expanding protections for LGBT rights will threaten their religious freedom.

In Houston, city lawyers obtained subpoenas requiring five pastors to turn over sermons and other communications that mention the city’s equal rights ordinance. The pastors sued to nullify the subpoenas as overly broad and irrelevant to the case.

Meanwhile, in Coeur d’Alene, Idaho, the city attorney opined earlier this year that two Pentecostal pastors who run a for-profit wedding chapel called “Hitching Post” must offer services to same-sex couples in compliance with a local ordinance banning discrimination based on sexual orientation in places of public accommodation. A few weeks ago, the owners of Hitching Post also filed suit to prevent city officials from forcing them to perform same-sex wedding ceremonies or face prosecution for violating the city’s anti-discrimination law.

In their zeal to uphold non-discrimination, city attorneys in both places were tone-deaf to the protections of the First Amendment.

The Texas controversy centers on an amendment to the Houston Equal Rights Ordinance (HERO) passed by the city council last May. Opponents attempted to place a repeal on the ballot in November, but their petition was rejected for not having enough valid signatures. Four taxpayers sued the city, claiming that the petition was wrongly invalidated.

As part of the discovery process, lawyers for the city obtained subpoenas for communications relating to the anti-HERO campaign — including subpoenas to five Houston pastors opposed to the ordinance, but not parties to the lawsuit.

Religious leaders and civil libertarians have spoken out against the sweeping scope of the subpoenas, pointing out that the First Amendment protects the teaching of religious leaders from government intrusion.

Houston Mayor Annise Parker tweeted that sermons on political topics were “fair game.” But a few days later, she acknowledged that the subpoenas were overly broad. Parker announced last week that the city would withdraw the subpoenas entirely.

Coeur d’Alene officials also appear to have changed their position or rejected the position attributed to the city attorney by publicly acknowledging that Hitching Post is exempt from the city’s non-discrimination law when performing religious marriages.

It’s true that for-profit businesses are places of public accommodation generally subject to non-discrimination laws. But ordained ministers are protected by the Free Exercise and Free Speech clauses of the First Amendment from being compelled by government to perform religious ceremonies that violate their faith.

If government officials want to avoid unnecessary conflicts and lawsuits like those that have divided Houston and Coeur d’Alene, they should think carefully how to protect First Amendment rights even as they work to implement laws protecting LGBT people from discrimination.

Striking a balance between ending discrimination on the basis of sexual orientation and upholding religious freedom will not be easy. As happens whenever competing claims clash in a pluralistic democracy, there will be winners and losers.

But surely Americans can agree on this: Under the First Amendment, religious leaders have the right to practice their faith without governmental interference or intimidation.

Charles C. Haynes is senior scholar at the First Amendment Center.


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