Government authorities in Houston, Texas this week issued subpoenas to Christian pastors. The subpoenas ordered the pastors to give copies of their speeches and sermons related to “homosexuality, or gender identity” to the government for their review. The subpoenas further demanded the pastors produce their e-mails, instant messages, text messages, and diaries, as well as communications to members of their congregation and legal counsel. Soon after Houston subpoenaed the pastors, a city in Idaho threatened criminal prosecution of other pastors for not performing same sex weddings in violation of their sincerely held religious conscience.
Draconian exercises of government power like that in Texas and Idaho are the natural outgrowth of new laws purporting to address “discrimination.” Such laws inevitably, and often by design, compel much of the American citizenry into silence, or to act against their conscience.
The Texas, Idaho, and United States Constitutions all protect freedom of speech and the free exercise of religious conscience. When government officials exercise power in ways that interfere with these fundamental liberties, they exercise power illegitimately. In a democratic republic, Constitutional good governance under the rule of law requires the government to obey the Constitution. The government issued subpoenas here are part of an ominous trend where government authorities arrogantly ignore Constitutional limits on the exercise of their power.
In a democratic republic, freedom of expression is not needed to protect the ideas of people with whom those in power agree – it is needed to protect people who express ideas with which those in power do not agree. Thus, the test of functioning good governance is not whether the government protects speech with which it agrees – it is whether it will protect expression it finds offensive.
Instead of censuring or punishing speech, good governance always allows more speech. Discussions about faith or sexual ethics, during a sermon or the provision of a public or commercial service, provide endless opportunities for individuals to allege discrimination – and to silence those whose views are informed by ancient sacred tenets. Censuring an idea simply because the idea is informed by a sacred worldview, prevents thousands of years of wisdom from informing the culture, whether during a sermon or in the public square. Christian people who attempt to participate in the marketplace of ideas should not be punished or persecuted simply because their ideas are informed by sacred tenets.
Because the Christian community knows God created human beings in His image, they love all as their neighbor and do not condone discriminatory actions against anyone based upon who they are. In today’s culture, therefore, Christian people frequently tolerate secular viewpoints inconsistent with their sincerely held religious conscience. In spite of this, government authorities, using the full force of governmental power, employ the so-called anti-discrimination laws to force Christian people to accept all sexual conduct as proper and worthy of legal protection, including conduct expressly prohibited by God. As the Houston and Idaho incidents demonstrate, a Christian person who fails to submit can expect to be subpoenaed, censured, and prosecuted for expressions of conscience grounded in ancient sacred tenets.
Selective enforcement and punishment of a Christian person’s expression sends a bitter chill throughout all of the citizenry in a democratic republic. Institutional integrity cannot exist without personal virtue. Good governance and civic institutional integrity rest on the virtue of its citizens. Christian ideas support and nurture this virtue and should, therefore, always be permitted within the marketplace of ideas. It is the job of government to protect this fundamental liberty. In doing so, Government authorities must, at the very least, recognize the Constitutional limits on the exercise of their power.
Prof. William Wagner formerly served as Federal Judge and is a Professor of Law at Trinity International University. He is currently President of Salt & Light Global.