I found them amusing. Also a bit disingenuous.
I’m a pastor, not a lawyer, but I don’t see anything in those filings that would justify any motion based on first amendment "freedom of religion" claims, and several points that contradict it.
Pastor McPherson says he is "concerned about the precedent that this subpoena sets for all those who wish to speak out about their beliefs." Sorry, but that’s an assertion, not an argument. So he’s concerned? Big deal. He gives no legal basis for that concern, simply acknowledges its existence. He asserts that compelling public testimony about religious beliefs would stifle future public testimony about religious beliefs? Please. You’ve got to back that up with a lot more, if you want to court to agree to a broad claim like that.
Pastor Garlow is more subtle, but puts himself in a box, saying in essence "I preach publicly, and because of that, I got threats. Therefore, I shouldn’t be compelled to give additional public testimony about my beliefs, because I’ll get more threats." That’s not a First Amendment argument, and has nothing to do with religion at all. Guido the Bookkeeper could claim that forcing him to testify about Mugsy the Murderer would bring threats to him, and the judge would still say "you have to testify."
If Boies et al. can get Garlow and/or McPherson on the stand to testify more about these claims, it could get quite interesting. I can imagine David Boies asking a series of questions that might be very interesting indeed . . .
* * *
Q: First, I’d like a little background about your ministry in general. How long have you been a pastor?
A: (gives # years)
Q: Have you preached a lot of sermons in all that time?
Q: Taught a lot of classes?
Q: Welcomed a lot of visitors to your church?
Q: Rejoiced at those who gave their lives to Christ as new believers?
Q: Sounds like good ministry you’ve been doing. (pause) Let’s turn more specifically to the controversy at hand around same sex marriage. Your filing with the court says you have received threats. When did you get your first threat? If you don’t remember the exact date, that’s fine — I’m just trying to get a rough idea.
A: (gives date)
Q: Did you quit preaching and teaching and testifying at your church about your beliefs about marriage after you received that threat?
Q: OK. (pause) Then you got a second threat — did you quit preaching and teaching and testifying about marriage at your church after that one?
Q: Is it true that you continued to preach and teach and testify about marriage at your church up to the November election?
Q: Despite all the threats?
Q: Have you continued to preach and teach and testify at your church about marriage since the election?
Q: Are your church services open to members only, or are they open to the public?
A: Open to the public.
Q: So it’s only when you are asked to testify here in court that this becomes a problem?
[Boies hands the witness a Bible, with a tab marking Romans 13:1-5.]
Q: Would you please turn to the tab and read the marked verses from St. Paul’s letter to the Romans?
[DI jumps to his feet]
DI: OBJECTION! This is not relevant.
Boies: It goes to the understanding that the witness has of courts and the government and giving testimony.
Walker: Overruled. The witness may read.
A: "Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves. For rulers hold no terror for those who do right, but for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right and he will commend you. For he is God’s servant to do you good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God’s servant, an agent of wrath to bring punishment on the wrongdoer. Therefore, it is necessary to submit to the authorities, not only because of possible punishment but also because of conscience." [New International Version]
Q: (pauses to let the verse sink in) In your understanding of St. Paul, is Judge Walker one of the governing authorities of whom this letter speaks?
A: Uh, . . . yes.
Q: Turn to the second tab, please, at 1 Peter 3:14b-17. Could you please read the marked section?
A: "Always be prepared to give an answer to everyone who asks you to give the reason for the hope that you have. But do this with gentleness and respect, keeping a clear conscience, so that those who speak maliciously against your good behavior in Christ may be ashamed of their slander. It is better, if it is God’s will, to suffer for doing good than for doing evil." [New International Version]
Q: (pauses again) Do you believe these two passages of scripture to be true?
Q: Then, if the court holds no terror for those who do right, and if you are to always be prepared to give an answer to everyone who asks you about your beliefs, why are you fighting the court’s request to offer your testimony?
A: It will be dangerous.
Q: I see. (pause) Was it dangerous for the prophet Nathan to publicly call King David to account for his adulterous affair with Bathsheba and his murder of Bathsheba’s husband to cover it up? [see 2 Samuel chapters 11 and 12]
Q: (pause) But Nathan did it anyway, right?
Q: (pause)Yes or no: Isn’t it true that you don’t want the court to hear about your preaching and teaching and testimony about marriage, and your efforts to protect it, because the court and all the world will hear EXACTLY what you believe?
Q: Yes or no: Isn’t it true that you don’t want the court to hear about your preaching and teaching and testimony about marriage, and your efforts to protect it, because people might discover that your words about having "nothing but love for homosexuals and lesbians" ring hollow when laid next to other words you used and actions you took in your support for Proposition 8?
Q: And yet you persist in asking this court to let you avoid testifying here today. No further questions.
* * *
Maybe that’s too preachy, but there’s nothing that will make a preacher squirm more than being skewered with scripture and held up to public shame.
The DIs could probably weaken some of this on cross, but re-direct could build it back up. If I were Boies, I’d take my time asking these questions, with plenty of thoughtful pauses and deliberate phrasing, because the longer these preachers sit on the stand and try to justify NOT giving public voice to their beliefs, the more nervous they will get.
And nervous preachers make mistakes.