Government Investigations & Legislative Law: Proposed Texas Legislation Would Privilege Sermons from Governmental Discovery

Thursday, May 4, 2017

As people analyze President Trump’s recent executive order seeking to promote “free speech and religious liberty” by allowing churches to engage in more political activity, the Texas legislature is advancing a bill that would restrict a litigant’s access to certain religious speech. Two identical pieces of legislation – House Bill 3956 and Senate Bill 24 – are successfully progressing during the final weeks of the legislative session.

The bills seek to amend the Texas Civil Practices & Remedies Code by adding a provision entitled “Sermons Privileged from Disclosure to Governmental Unit.” If passed, the Code would read:

A governmental unit may not, in any civil action or other civil or administrative proceeding to which the governmental unit is a party, compel the production or disclosure of 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.

The proposed legislation is likely a belated response to the City of Houston’s efforts to subpoena the sermons of five pastors in 2014. During litigation stemming from efforts to repeal that city’s so-called Houston Equal Rights Ordinance, lawyers for the City sought the sermons of pastors actively involved in the repeal effort. After a national outcry, the City of Houston dropped its efforts to obtain the sermons. The following year, a local pastoral group (unsuccessfully) sued the City’s then-mayor over the issue.

The proposed legislation broadly defines a governmental unit to include any stage agency, any political subdivision, and any local unit of government. Therefore, any state agency with a regulatory interest in the conduct of religious organizations would be limited in their access to religious proceedings. The definitions of “religious organization” and “religious worship” are borrowed from the Texas Tax Code. To be a religious organization, an entity must qualify for a tax exemption as such. 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.”

Interestingly, the word “sermon” is not defined in the bill, nor is a definition of “sermon” found anywhere else in Texas statute. If this bill were to become law, the absence of a definition could become relevant. Would a Catholic priest’s homily enjoy the same protections as a sermon, despite not being expressly mentioned? What about a rabbi’s derasha? Would this bill place the Islamic khutbah beyond the reach of discovery? Would the next David Koresh’s “sermon” exhorting his followers to commit acts of violence against certain people be privileged in subsequent litigation? Should “religious leaders” be advised to cloak questionable conduct in the auspices of a “sermon”?

If either of these legislative measures manage to become law this year, religious institutions involved in a governmental contest – which could run the gamut from child care licensing or tax disputes to discrimination investigations or property use issues – should offer thanks to the Texas Legislature for this newfound privilege.