Religious Freedom in Houston

In today’s news conference, Elder Oaks continued his outspoken advocacy of religious liberty, a right that he has passionately defended in the past. He provided three recent examples that, he explained, demonstrate trends away from religious liberty. One of the examples Elder Oaks cited was this:

Yet today we see new examples of attacks on religious freedom with increasing frequency. Among them are these: . . . Recently, in one of America’s largest cities, government leaders subpoenaed the sermons and notes of pastors who opposed parts of a new law on religious grounds. These pastors faced not only intimidation, but also criminal prosecution for insisting that a new gay rights ordinance should be put to a voice of the people.

While the subpoenas certainly represented an attack on religious liberty, I don’t think that’s the story here. Rather, what happened in Houston strikes me as evidence of the power of religious liberty in U.S. culture and law. Some context on the kerfuffle in Houston: 

In May 2014, the city of Houston[fn1] enacted the Houston Equal Rights Ordinance (“HERO”), which, among other things, prohibits discrimination against gay and transgender individuals in employment and housing. The ordinance was passed by the city council, and was not universally embraced in Houston.

Over the summer of 2014, a group of pastors and other religious leaders started gathering signatures to get a referendum that would repeal the ordinance on November’s ballot. The referendum didn’t ultimately end up on the ballot because the city attorney disqualified some number of the signatures. Opponents of the law responded by filing a lawsuit demanding that the referendum be put on the ballot.

So far, there’s no religious liberty story here; instead, it’s the story of competing political interests. But the story doesn’t end here.

Attack on Religious Liberty

As part of discovery in the suit, the city of Houston issued a subpoena to several of the pastors involved, demanding, among other things, “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.”

The reaction to these subpoenas was immediate outrage. Major evangelical voices objected to the subpoenas. The Alliance Defending Freedom, a conservative advocacy group that focuses on religious liberty, explained that “[a]sking [the pastors] to turn over their constitutionally protected sermons and other communications simply so the city can see if the pastors have ever opposed or criticized the city, violates the First Amendment.”

But it wasn’t just religious and conservative groups arguing against the subpoenas: Americans United for the Separation of Church and State said that, while it is permissible to subpoena pastors, the pastors in question had not been accused of wrongdoing and were not parties to the suit; as a result, this subpoena was out of bounds. And the ACLU said, in no uncertain terms, that,

[w]hile a lot of things are fair game in a lawsuit, government must use special care when intruding into matters of faith. The government should never engage in fishing expeditions into the inner workings of a church, and any request for information must be carefully tailored to seek only what is relevant to the dispute.

What Happened Next

In response to this pushback, the city rescinded the subpoenas, and subsequently issued new subpoenas that focus narrowly on instructions the pastors gave about the petition process.[fn2]

So yes, the city of Houston attempted to seriously and significantly impinge on the religious liberty of a number of pastors. And it faced immediate, powerful, and loud reactions, both from organizations that agreed and disagreed with the pastors’ political (and, for that matter, religious) aims. And the political pressure worked (and, had it not, I have no doubt the judiciary would have narrowed or quashed the subpoenas).

Ultimately, rather than evidencing an attack on religious liberty, then, I believe the Houston kerfuffle shows the strength and power of religious liberty in the United States. Certainly, what the city did was bad and wrong, but we can’t affirmatively prevent all bad and wrong things from happening without seriously infringing on liberty in general; what matters is what happens in response. And in response, religious liberty won.[fn3]

[fn1] The fourth largest city by population in the U.S., after New York, LA, and my beloved Chicago.

[fn2] Do the revised subpoenas impinge on religious freedom? Probably not; nothing about being a pastor prohibits the government from subpoenaing you, and you don’t have the religious liberty to not be subject to judicial process.

[fn3] That isn’t to say there aren’t instances of successful infringement on religious liberty. It happens, even in the United States. Just this wasn’t an example of successful infringement.

Comments

  1. I wasn’t aware of these happenings, so I appreciate the context given here.

  2. So what you’re saying and what Elder Oaks are saying are completely compatible. He spoke about an “attack” on religious liberty; you’ve called it an “attempt[] to seriously and significantly impinge on religious liberty.” Those sound like the same thing to me.

  3. Bryan, Sam is suggesting that the outcome of the Houston situation actually showed society rallying in defense of religious freedom. So Houston isn’t really an example of religious liberty under attack. Instead, it’s an example of the City overreaching and society loudly calling them to account, and the City altering course in response. The immediate and strong reaction from a broad array of different groups — some completely ideologically opposed to each other — decrying the City’s attempt to issue such subpoenas shows that religious freedom is intact.

    I would venture to say that religious freedom is stronger and healthier right now than it has ever been in the history of the world (known history at least). I am really curious at those who would argue otherwise, and on what basis. When did religious freedom enjoy stronger protections than right now?

  4. I’m just not sure I understand how the LDS church interprets liberty and freedom when it comes to the nexus of religious institution, political governance, and individual expression of faith. I think this is evidenced by reducing the above situation down to a 1D, supportive soundbite, and being slightly conflate-y about professionals refusing to practice specific services, or specific individuals.

    I’m baffled how the institution can have D&C 134:9 in current canon, go hard for, say, Prop 8, and then clamour for government to pass legislation to protect your ‘religious freedoms’, couched in a PR bit on LGBT+ in UT (without so much as a backwards glance, or preferably, a formal renouncement of poisonous elements in Horizons/Hope for Transgressors/For the One). Not sure supporting equality in housing/employment opportunity garners enough LGBT+ brownie points for all that.

    At any rate, the level of clarity in the OP is much appreciated, but I wish it were shared by the church.

  5. Thanks for the added context to this example.

  6. I agree that religious liberty is still generally strong in the United States. But simply because something is strong or in good position does not mean there are not “attacks” on it.

    (As an analogue: Right now gay marriage is permitted in some 36 or 37 states, the strongest position it has ever been in. If someone in Congress introduced a federal amendment to the Constitution to prohibit states from recognizing gay marriage, it would rightly be categorized as an “attack” on gay rights, even if it was voted down by an overwhelming margin.)

    I agree that many Christians overstate the amount of persecution they are under. But that does not mean there isn’t an increasing amount of attacks on religious liberty. I think the very concerted campaign against state RFRAs this past year are a good example of what Elder Oaks’ perceives as an attack on religious liberty. That isn’t to say that State RFRAs are necessary to preserve religious liberty, but the tone and rhetoric used by (what seems to me to be an increasing amount of) people shows that there is an increasing shift against religious liberty in favor of other entitlements.

  7. Thanks for this, when he said that my mind lit up because it was an overreach that was fairly quickly corrected. And it didn’t come out of nowhere, but as a part of discovery due to being sued. Not a typical witch hunt, imho.

  8. sym: I realize you are looking for a “formal renouncement” which will not happen, but attitudes, or at least methods have changed. In regards to Prop 8, we had moved out of CA by then, but we were there in 2000 for Prop. 22, also pretty ugly. All good zealous members trying to prove they were more zealous than thou, ugly, ugly, ugly. We moved to Washington and in 2012 our legislature legalized gay marriage, that immediately spawned a campaign for a referendum to negate it. NO ONE at church gave us a petition to sign, though our non-member neighbor did. We didn’t hear a thing about it at church. When Ref. 74 made the ballot, we dreaded the election more than I can say. Did not hear ONE word about it at church. There was no formal church sponsored campaign, no collection of donations for the campaign while we were in Sun. school. No prayers about it from the pulpit, no campaign signs passed out for our lawns. NOTHING. Progress has been made, even though there is no forgiveness for past sins, progress has been made.

  9. I’m puzzled why people are suggesting that because the Houston subpoenas were quashed (and likely would have been had they been reviewed by a judge) that somehow they don’t constitute an attack on religious freedom. Or are you saying that because that battle was won we needn’t fear any further assaults on religious liberty in the future?

    It seems instead that the lesson to be learned is that we need to be continually vigilant in the defense of religious liberty. And just because the ACLU joined in the pushback against the subpoena of sermons, don’t hold your breath waiting for them to join in a dispute pitting religious liberty against what they might characterize as unlawful discrimination. Or should we just whistle past that graveyard?

  10. Mark, I’m saying that if this is your evidence of religious liberty under attack, the evidence is slim. Sure, the city crossed the line, but the system worked in exactly the way it was supposed to. I can’t imagine a better result for, or evidence of, healthy religious liberty.

  11. I agree that the outcome was indicative of religious freedom’s relative strength these days, but there is one aspect of this event that hasn’t been resolved for me. The subpoenas were clearly overreaching, but by the same token, if the pastors were advocating a political agenda, wouldn’t their tax exempt status be in jeopardy? I believe that is why the church today was clearly separating themselves from any particular piece of legislation in their statement.

  12. And I’m not concerned with what the ACLU, or AU or the ADF, might do if the facts were different. I’m interested in what they did in the example that we were presented.

  13. Kevin, I’m on my phone, so forgive the brevity, but no. Tax-exempt orgs, including churches, can lobby, as long as lobbying isn’t a too-significant portion of what they do. They cannot endorse or oppose candidates for office, though, or they (are supposed to) lose their exemptions.

  14. Sam, what do you think the City’s purpose was behind issuing subpoenas for those sermons and notes in the context of the discovery process in that lawsuit that was brought against it? Was it to attempt to restrict the free exercise of religion?

  15. Sam, maybe “under attack” means something different to different people. If it means “under siege, down to the last round of ammunition, eating the shoes of our dead comrades” then I’ll agree that religious freedom is not under attack. But if it means an attempted intrusion by government into the belief and practices of religious organizations, then those religious organizations were under attack. Not a serious one, ultimately, and not worth waving the bloody shirt about. Especially since almost everybody agrees that if religion is anything it’s the freedom to go into a hermetically sealed building and believe whatever you want in that building.

    As I suggested, though, once you take religion out of that building and line it up against other interests, especially interests for which competing constitutional claims are made, the robust defense of religious liberty among irreligious defenders of the constitution are likely to vanish like the hoarfrost in the morning sun.

  16. Does their intention matter? If they’re simply overreaching in a lawsuit, and their actions have the effect of restricting religious freedom, do they have to “intend” to restrict free exercise in order to fail constitutional muster?

  17. John, from what I’ve read, I think it was smashmouth politics. I think it was meant to crush political and judicial opposition, but I don’t think they were thinking specifically of impinging on religious rights. That is, I certainly don’t think it was praiseworthy, but I think the mens rea its nonpraiseworthiness was areligious.

  18. Mark, I guess my take is, if “under attack” merely means that someone acts illegally toward religion, then yes religion is under attack, but so what? So is every institution. If “under attack” is to be meaningful in any way, there needs to be some substance, some chance of success to the attack. And I think those examples exist—my lay understanding is that mosques have a horrible time being built because of anti-Muslim sentiments. (It may be the same with our temples; I know sometimes, some places it is.)

  19. If the reference to Houston is meant to portray an ongoing attack, then it is inaccurate. Having a larger picture of the story, as the OP gives, allows us to evaluate the claim better. I would be interested in seeing fuller context for the other two examples Elder Oaks used.

  20. If a young man attacks an old woman, and the old woman and her neighbors beat off the young man, then we can say there never really was an attack on the old woman? No, there was an attack, and there was an environment that made the young man think he could prevail in his attack. And there was an attack on religious liberty in Houston. Thankfully, it was beaten down.

  21. Sam, is there any precedent for discovery requests comparable to the one made by Houston having been made in any other court cases? If not, and if no one had ever gotten away with that kind of thing before, then why did Houston City think they could get away with it now? What changed? For my part, I am inclined to think that there is an attitudinal sea change underway and that the Church is right to be concerned about where this all may lead.

    It’s been grimly amusing to see certain elements of the discussion say “No, no, we’re not planning anything against the Mormon Church (but if we were, they’d totally deserve it; the nasty bigots!)”

  22. ji, if we want to do attenuated hypotheticals, a better on might be, one guy threatens to beat up another guy. The first guy’s friends, the second guy’s, and pretty much every other bystander is horrified at the idea, and encourages first guy not to. So he doesn’t.

    Jim, I’m not a litigator, but my anecdotal impression is that, at least for some attorneys, discovery demands tend to be as broad as a side thinks it can get away with. But I don’t have the experience to know if this breadth could be considered normal (but for the fact that it’s pastors) or if it’s out of line in any respect. Anyone know?

  23. I like mine better — the city didn’t just think about issuing the subpoenas but then decided not to, as you try to describe; rather, it actually issued them with the threat of the full force of the law. The issuance of the subpoenas was an attack against which the other parties had to fight back. There is not a first guy – second guy situation between equals where there was just a discussion — the city had subpoena power and used it heavy-handedly against weaker parties.

  24. ji, you’re welcome to like your version better, but it doesn’t describe what happened. The five pastors were instantly represented by the ADF; public opinion was instantly and always on their side. The subpoenas were clearly overreaching, but the system effectively dealt with the problem before it became a problem. That is how our system works; it is clearly possible, in the course of litigation, to overreach and, without draconian measures, I suspect it is impossible to entirely prevent that overreach.

    Like I said, this is an example of the system working, and working well.

  25. Ann, thanks for your comment. You’re right, and while this is practically gossip, I heard from a son-in-law of a 12 that there was some regret over Prop 8; some of the backlash was unexpected. The reason why I still feel unsettled by Prop 8 specifically (that and the lobbying in Hawaii as per Mother Jones’ document release) is that the church holds itself to a different standard of operation than the members when mistakes are made. It seems to me like they value the appearance of infallibility more than being a living church. Apologise for the thread jack.

  26. Sam,

    So you wouldn’t see any problem with an over-zealous prosecutor pushing for and getting an indictment against a known innocent man, especially if the prosecutor drops the charges weeks or months later after being ridiculed in the press (and after the innocent man spent all his money on attorneys)? Because the process “worked” and the prosecutor dropped the charges? We will have to disagree — I see the subpeonas as a purposeful attack on religious freedom (and I’m glad so many others agreed and immediately raised such a ruckus), but you seem to see them as harmless exercise that didn’t merit anyone’s concern. Is that your thesis, that there really was no attack on religious freedom?

  27. Not to speak for Sam, but describing it as an attack on religious freedom fails in the same way that your hypothetical would be a bad reason to panic about the safety of old women in general, especially when it is discovered that the old woman was dressed in a gorilla costume at the time, and had been harassing the young man beforehand: reading a trend into a more or less isolated situation seems unnecessary and bound to create an unwarranted response.

    Of course intent matters here. Otherwise, wrongful death, manslaughter, and 1st degree murder wouldn’t need to be distinguished in law.

    There may some campaign against religious freedom in the offing, but that is hardly demonstrated by the fact that the Houston city government’s lawyers’ overreach affected a group of people that happened to be religious.

    The nearly universal and bipartisan outcry, followed by a speedy resolution, speaks rather to the robust support of religious freedom, not its endangered status.

  28. ji, your hypothetical doesn’t work on a factual level: this (a) wasn’t a criminal prosecution, and (b) wasn’t irrelevant to the issue at hand. The lawsuit dealt with the disqualifying of signatures on a ballot initiative; if these pastors worked on that ballot initiative, even if they weren’t the litigants, they may have information relevant to the legal proceeding. Certainly, the subpoenas were overbroad but, like L-dG said, such overreach can occur in a proceeding that involves religious and nonreligious individuals. That’s the whole point of SLAPP suits, which are also bad, not because they’re aimed at religious persons (they’re not necessarily), but because they use the judicial system too aggressively to silence others.

    I’m not arguing, by any means, that what Houston did was good. It was far more aggressive than I think litigation should be. But it was stopped. Voluntarily. And the scope of the discovery request was narrowed to a reasonable scope.

  29. so the entire city council of a major city decides to subpoena not just the sermons of the two pastors involved in a lawsuit against the city, but other pastors as well…and not just sermons related to the direct situation, but ANY sermon that discusses: 12. All speeches, presentations, or sermons related to HERO, the Petition, Mayor Anise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession. (is discussing adam and eve a gender issue?)…and we’re waiting for more to happen?—so even if the pastor revised or approved of ANY sermon related to gender identity and approved is so vague as to constitute every sermon written by anyone, or even prepared by anyone in his church.

    We also had this part of the subpoena… The subpoena also demands records of petitions and “petition circulators.” According to the press release, opponents of HERO had submitted a petition to either repeal the ordinance or place it on the ballot for public approval.

    This petition reportedly included three times the number of required signatures, was approved by the city secretary, but was then rejected by Mayor Parker and the city lawyer.

    Isn’t it easiest to fight this kind of thing early? Isn’t it easiest to fight it when other people will join you in getting the subpoena suspended, instead of waiting until the pastors are all in jail on random trumped up charges?

    Consider that the entire purpose of the discussion of the city council was to reduce discrimination.

    Imagine if petitions were rejected on the other side of the equation by the mayor despite three times the number of signatures? would that be an attack?

    Is an attack only an attack if it’s on something weak? Shall we wait until religion is beat to death and THEN identify an attack as an attack?

    The entire point of the church’s stand is that if YOU want the right to speak freely, you must protect the right to speak freely precisely when they say what you don’t like. That protects your freedom to say what they won’t like.

  30. No offense, but that is most definitely not their entire point. This is about actions, not just pure speech. We’d like to also say and do unpopular things and not suffer persecution for it (eg being called rude names such as bigot). We’d like Mormon pharmacists to be able to refuse to dispense morning after pills. This is more than defending the right to say unpopular things.

  31. So can anyone point to any factual basis for Elder Oaks’ representation that “these pastors faced not only intimidation, but also criminal prosecution…”? Because that seems pretty clearly false.

  32. IIRC, failing to comply with a subpoena can expose one to criminal contempt. And I think there was also concern that the subpoena as-drafted was basically a fishing expedition to see whether the pastors involved had violated restrictions on political speech that were tied to their nonprofit status.

  33. So Houston is an imperfect example, does that make Elder Oaks’ point any less valid? John f and a few other commenters on this thread claim he is wrong in asserting that religious freedom is under attack in the United States or even threatened more than it has historically.

    Let’s step back and consider the context of the press conference and what Elder Oaks along with Elders Holland and Christofferson were advocating on behalf of the leadership of the Church.

    The call was to balance support for LGBT rights with freedoms of religion to ensure that equal protection under the law is provided to parties with interests in either issue. The reality is that efforts to support traditional marriage as a personal belief are treated with prejudice in many public venues including public education, politics and the corporate world. Simply expressing religious beliefs is under attack as well by secular forces in a country that is increasingly shifting away from religiosity. Elder Oaks cited several examples intended to show the types of challenges that religious adherents, especially those with deep Christian beliefs are facing in the backlash for contesting LGBT laws.

    One of the examples cited: Brendan Eich’s forced resignation as CEO of Mozilla by the community he was responsible for supporting because 5 years previously he had supported Prop 8 with a donation.

    http://reason.com/24-7/2014/04/04/mozilla-ceos-resignation-over-donation-t

    As Andrew Sullivan stated, this is a disgusting example of fanaticism that swells within the hearts and minds of many Americans now that the tide has turned.

    Will he now be forced to walk through the streets in shame? Why not the stocks? The whole episode disgusts me – as it should disgust anyone interested in a tolerant and diverse society. If this is the gay rights movement today – hounding our opponents with a fanaticism more like the religious right than anyone else – then count me out. If we are about intimidating the free speech of others, we are no better than the anti-gay bullies who came before us.

    I think it’s worthwhile to stop and consider why those who we sustained as Prophets, Seers, and Revelators might be raising a red flag about the trends they perceive within our society and requesting a balanced approach. Is it a sentiment of ancient, ill ventilated minds or a warning from inspired, apostolic witnesses? I contrast them so deliberately because the continuum of attitudes shows up in the bloggernacle.

    There may be an overreaction but there is also merit I think. There is a hostility toward conservative religious belief in many areas of society today, a turn that can and might shift political decisions toward those that do not favor Latter-Day Saint beliefs.

  34. When it comes to avoiding being called bigots, it would be nice if we could start by avoiding being wounded in the house of our friends.

  35. JimD:

    I just checked—failing to comply with a civil subpoena in Texas can only expose a person to civil contempt under Tex. R. Civ. P. 176.8, and a prosecution would most certainly not be involved. So that doesn’t seem likely. Moreover, Elder Oaks did not say that they faced criminal prosecution for refusing to comply with the subpoena, but rather “for insisting that a new gay rights ordinance should be put to a voice of the people.” It’s possible he was just repeating someone else’s exaggerations and misrepresentations (as per his previous citations of Regnerus), but I can’t seem to find much solace in that…

  36. That would be nice!

  37. Nate, I’m inclined to give Elder Oaks the benefit of the doubt here: General news reports said that if the pastors failed to comply with the subpoena, they could face contempt charges (e.g., http://www.foxnews.com/opinion/2014/10/14/city-houston-demands-pastors-turn-over-sermons/). I don’t know anything about Texas law, and assumed that it would be criminal contempt, especially based on the news reports. Even if he was wrong on that point, it strikes me as an honest mistake.

  38. Maybe, Sam, but I would be more inclined to believe it was an honest mistake if Elder Oaks weren’t a lawyer, law professor and state supreme court judge …

  39. Yeah, but it’s been what, 30 years? And I’m pretty sure his practice didn’t involve Texas penalties for violating civil subpoenas; mine certainly didn’t.

  40. If Texas were an exception or part of a minority rule, that would be one thing, but is there any U.S. jurisdiction that (a) punishes failure to comply with a civil subpoena with criminal contempt; or (b) treats contempt as a criminal matter that is prosecuted by a prosecutor? I’m pretty sure there isn’t.

    But even if you excuse that, the hypothesis that Elder Oaks was thinking about contempt is not consistent with his statement that the pastors faced criminal prosecution “for insisting that a new gay rights ordinance should be put to a voice of the people.” I won’t belabor the point, because I’m sure we won’t convince each other, but it seems like really shoddy work to me.

  41. Nate, I don’t really disagree with you. I just don’t think he was speaking or thinking with his attorney hat on, and I’m willing to give lay people a bresk when it comes to legal regimes, sometimes even when it’s an important regime like tax.

  42. That said, it’s important that a civil subpoena can only subject one to civil contempt charges, so thanks for bringing that up!

  43. Read what the California Supreme Court recently ruled on, judges who associate with the Boy Scouts of America. And things like that are happening in Canada. So yes, religious freedom and religious beliefs are under attack. And it will become worse.
    I read (during the CA Prop. 8 debate) that as soon as LGBT’s get marriage legalized for them, it would not stop there. There would be pressure to go after anyone and everyone who does not agree with homosexuality and go after everyone who associates with organizations who oppose homosexual marriage, and make it legal to go after those who oppose homosexual marriage. It is now happening.
    The LGBT community claimed all they wanted was to have legal marriage rights like what heterosexuals have, no more and no less. Riiiiiight.

  44. Since when is the BSA a religious organization?

  45. EG, the state of religious liberty for judges in California has nothing to with whether the Houston subpoenas were an attack on religious liberty, so I assume you’re responding to John’s assertion that religious liberty is more robust today than it ever has been.

    And the California situation is certainly germane, and supports what John said. The California Code of Judicial Ethics has a relatively robust anti-discrimination provision. Until Friday, it had an exception for discriminatory youth organizations; the Supreme Court, upon advisement from its advisory board, eliminated that exemption (effective a year from now).

    Note, though, that it still has an exemption for membership in discriminatory religious organizations. In fact, that’s its only exemption. As a result, California judges’ religious liberty is strongly protected. Eliminating the BSA exemption may (or may not) represent an infringement on judges’ freedom of assembly, but their religious liberty continues to be protected.

  46. it's a series of tubes says:

    Eliminating the BSA exemption may (or may not) represent an infringement on judges’ freedom of assembly, but their religious liberty continues to be protected.

    Sam, do you think you can have one without the other? “Believe what you want, but don’t assemble with people who share common beliefs”… that’s religious liberty in your eyes?

  47. tubes, I mistyped (morning rush and all that): freedom of association.

    In response to your question: I have no idea if this infringes on their freedom of association, but even if it does, the religious exemption puts it squarely within what our church is now asvocating (broad anti-discrimination laws with robust religious exemptions). So not only do I think it’s consonant with religious liberty, but I think it’s an example of how a pluralistic society can balance conflicting important policies. Religious liberty does not and cannot mean religion automatically trumps all other considerations, and it never has (see Reynolds, for better or worse). There is no religious reason the BSA should be exempt from the CA judiciary’s policy that judges not belong to organizations that discriminate (a policy that prevented judges from belonging to military organizations until the military revoked DADT), so it’s hard to articulate a reason (much less a religious reason) the BSA warranted an exception.

    Though frankly, that has nothing to do with the OP.

  48. Sam, one can still be jailed for civil contempt–just not for longer than thirty days or so, no?

  49. Jim, I thought so, but to Nate’s point, being jailed for civil contempt is technically different than facing criminal prosecution.

    tubes, let me add one thing: the fact that the limitations are on California’ judiciary is also relevant. When I clerked, one of the first things we were told in training was that we had to remain entirely politically neutral. Examples: no signs in our yard supporting a candidate, no donations to candidates, nothing. Even though political speech is a fundamental right and value, the federal judiciary had a strong countervailing value of appearing (and being) nonpartisan in its resolution of disputes. The California judiciary may not have the same rules as the federal judiciary, but it does have a compelling reasons to be and appear fair and impartial, even where that requires judges to give up some things they have a right to do.

  50. Mel Tungate says:

    Wow, you certainly understated the case in Houston. When you say “The referendum didn’t ultimately end up on the ballot because the city attorney disqualified some number of the signatures”, maybe you should have added that the signatures showed mass fraud, enough fraud that suit could have been brought against the pastors. Simply, names were systematically made up, and often a full page had the same handwriting.

    So, the real story is that religious leaders tried to fraudulently circumvent the democratic process, were caught, and used false public outrage to try to achieve their goals.

  51. Age seems to have a lot to do with the perception of being under siege.

  52. JimD:

    Civil contempt is not meant to be punitive, it’s meant to be coercive. The goal is to get you to do what you were ordered to do, not punish you for failing to do it. That said, if Elder Oaks had said “criminal penalties” that would be a closer case. But prosecution means something, and civil contempt ain’t it.

  53. Clark Goble says:

    Sam, while I acknowledge your point ideally the city wouldn’t have overreached like this.

    I do wish Elder Oaks had made more clear as to where he feels religious liberty is under threat. I understand the fears mind you. Society doesn’t have a terribly good history respecting the liberty of religious minorities in the country. Part of me thinks that broadly socially conservative Christians (including us even though we differ with the main Protestant groups in many ways) are recognizing they may become the minority and suffer the same treatment. I’m not at all convinced that this is a negligible worry despite agreeing that broadly speaking we do have more religious freedom today.

    I think the worry is that religious freedom today is as strong as it is because of the more roughly balanced place of the active Christians. Once that balance shifts (as I expect it will even if I’m skeptical we’ll follow the path of most of western Europe) I think there are legitimate worries.

    That said I don’t expect states will start demanding Christians marry gays any time soon. I think that’s put out there too much but it’s about on par with ISIS detonating a nuclear weapon in New York City. I do think many believers look at Europe and have worries. My typical rejoinder is that Europe is different precisely because there often were state religions and a presumption that one religion can be treated differently from the rest. Further I think people need to be more clear as to what specifically they fear from Europe.

    That is, I tend to agree that a lot of this is paranoia. That said even paranoids have enemies and one doesn’t have to read very much of the writing in certain circles to recognize many would love to infringe upon religious liberties if they could. Law often follows cultural change (which is why so many courts are now ruling on gay marriages whereas even 15 years ago it was fairly inconceivable) Culture is changing and it’s not changing towards the religious. So I think worries, if overstated, are understandable.

  54. Clark, there are certainly infringements on religious liberty happening. But Houston isn’t an example of that (again, notwithstanding the initial overreach, the system worked to check it). The ACLU has a map (a couple years old, but it was a quick Google find) of problems mosques have been facing.

  55. Clark!!! You’re alive!

  56. I think the use of “attack” above lacks nuance: yes, a mosquito could be said to attack a metal wall if its intent was to harm it, but such is hardly comparable to a 300 pound martial artist attacking a feeble old man (or vice versa). In other words, not all “attacks” are equal and to treat them as such, where all such attacks merit alarm, is misguided. If there is a robust system in place to protect an institution, then any attack on it will be comparatively benign. If there is not such a system, the attack is more significant and cogent.