Last Friday Texas Governor Greg Abbot signed Senate Bill 24 which will prohibit the government from subpoenaing the content of sermons. At a church service on Sunday, Abbot told the congregation that, “Texas law now will be your strength and your sword and your shield. You will be shielded from any effort by any other government official in any other part of the state of Texas from having subpoenas to try to pry into what you’re doing here in your churches.”
Texas made national headlines in 2014 when the mayor of Houston, Annise Parker, subpoenaed copies of the sermons of local pastors, among other documents, as part of the defense against a lawsuit over a petition to repeal the city’s gender-neutral restroom ordinance.
Analysis
This bill does not create a new right as churches would be able to assert a First Amendment right along with other constitutional rights to protest such a subpoena, but the bill does demonstrate the extent to which the state of Texas is willing to prevent such subpoenas. The bill does not prevent criminal investigations or government review of sermons disclosed by means other than a subpoena.
But taken on its own merits, in the language of the bill, it only applies to a “government unit … in any civil action or other civil or administrative proceeding to which the governmental unit is a party.” Presumably, this would not apply to criminal investigations.
It will also only apply to “a written copy or audio or video recording of a sermon delivered by a religious leader during religious worship of a religious organization or compel the religious leader to testify regarding the sermon.” It would not apply to notes taken by parishioners, etc.
The term “religious worship” is defined in a somewhat vague but expansive manner as per the Texas Tax Code – TAX § 11.20 which states:
For the purposes of this section, “religious worship” means individual or group ceremony or meditation, education, and fellowship, the purpose of which is to manifest or develop reverence, homage, and commitment in behalf of a religious faith.
This bill appears narrowly tailored to address the rare Houston-style scenario and is not expected to apply in broader circumstances. Also, if a sermon is publicly posted online or recordings are distributed to parishioners, the government would likely still be able to review those materials. The only thing that this bill prevents is the governmental subpoena of religious organizations or members of the clergy to obtain the materials. The bill also does not apply to materials beyond sermons, although religious organizations could argue for their protection by analogy. The bill will also probably not apply to minutes of boards of directors or other administrative actions, although houses of worship would likely assert constitutional privileges, including the First Amendment, to protect those documents.
The Texas bill is not expected to prevent the Federal government from engaging in a very rare action of reviewing sermons for political content to ensure compliance with the Johnson Amendment which prohibits 501(c)(3) non-profit organizations from endorsing candidates.
Photo: Phil Roeder – Texas Capitol – Creative Commons
