Lawmaker urges ’19 bill to prohibit sermon subpoenas
As the fate of some Arkansas cities’ protections for gays and lesbians rests in ongoing court battles, an El Dorado lawmaker has proposed legislation to protect what preachers say from the pulpit.
An early draft of a bill by state Sen. Trent Garner, R-El Dorado, would prohibit government entities from subpoenaing recordings or written copies of religious sermons for the purpose of civil litigation.
Garner said the legislation would protect clergy who preach against homosexuality in the event their local leaders ban discrimination against lesbians, gays and transgender people. Supporters of those protections, however, say they’re not interested in muting preachers.
The first chance for Garner’s bill to be considered would be in the 2019 regular legislative session. But courts may not settle the debate over local gay and transgender protections for years.
At the center of the fight over gay and transgender rights in Arkansas is a Fayetteville ordinance prohibiting discrimination based on gender identity and sexual orientation. The ordinance includes an exemption for churches and other religious institutions.
As in other cities that have sought to expand those protections, the Fayetteville ordinance faced an effort to quash it. The ordinance is on hold after the Arkansas Supreme Court ruled in February that it conflicted with a state law, Act 137 of 2015, which prevents localities
from passing protections for people not included in state anti-discrimination law. Eureka Springs has a similar ordinance, but it’s unclear if it’s still enforced after the court’s ruling, which remanded the case to the trial court.
After Houston passed an equal-rights ordinance in 2014 to protects gays and lesbians from discrimination, opponents waged a petition drive in a successful effort to have voters repeal the ordinance.
Several pastors helped gather signatures in the Houston petition drive. In a lawsuit over whether the signatures should be counted, the city subpoenaed their sermons referring to the local ordinance, according to news reports. After more than a week of outcry from Houston pastors, the city dropped its subpoena request.
Garner says he wants to prevent any chance of a similar occurrence in Arkansas.
“Our pastors and rabbis and other folks shouldn’t have their sermons scrutinized for their deeply held religious beliefs,” Garner said in a phone interview.
The freshman lawmaker provided a copy of his bill to the Arkansas Democrat-Gazette. The legislation closely mirrors a Texas law that was passed in May and ceremoniously signed by Republican Gov. Greg Abbott inside a church.
In addition to pastors and rabbis, Garner’s draft bill
would protect nuns, imams and ministers, as well as laymen who “engage in ministering.”
Asked if he knew of any instances of Arkansas localities requesting copies of their local pastors’ sermons, Garner said he had not heard of any, but hoped to be proactive.
Fayetteville City Attorney Kit Williams, who has defended the city’s nondiscrimination ordinance in court, said he could never envision such a scenario occurring. Asked about Garner’s proposal, he accused lawmakers of attempting to spread “unfounded fear.”
“It is pure fiction, with someone trying to create an issue where there is no issue,” Williams said, pointing out that other laws and the U.S. Constitution already protect religious liberties.
The records that Williams said he does want belong to lawmakers.
As part of a legal attempt to have Act 137 — the state’s ban on local protections against discrimination — ruled unconstitutional in Washington County Circuit Court, Williams has subpoenaed public statements made by the law’s sponsors, Sen. Bart Hester, R-Cave Springs, and Rep. Bob Ballinger, R-Hindsville. Williams says he believes the two lawmakers made statements that will show their aim was to discriminate against gays and lesbians, not improve “intrastate commerce,” as the law’s title suggests.
The lawmakers, represented by Attorney General Leslie Rutledge, have pushed back on having their statements subpoenaed, arguing that they are protected by legislative privilege under the Arkansas Constitution. The matter was appealed to the Arkansas Supreme Court on Monday.
Both Hester and Ballinger said Monday they were only familiar in passing with laws similar to what Garner has proposed. They each added that they hadn’t asked him to run the bill, though they said they would support such a measure.
Ballinger, who said he preaches on occasion when asked, said it’s possible the subpoena against him could cover statements he’s made in church, though he wasn’t sure. Hester did not think Garner’s proposal would pertain to any statements he’s made.
When talking about his proposal, Garner was quick to note that it would not apply in criminal cases — citing “radical Islamic terrorism” as an example — or in lawsuits not involving a government entity.
The proposed law also spells out an exemption for “legitimate investigation into terrorist- or terrorism-related activities” as part of a civil lawsuit.