Mayor threatens pastors with felony charges over recall

El Paso Mayor John Cook

A group of churches and pastors in El Paso, Texas, are in a legal battle with the city's mayor, who has cited a state election law he says would make their distribution of recall petitions against him a third degree felony.

Now Jesus Chapel and its pastor, H. Warren Hoyt, with the help of attorneys from the Alliance Defense Fund, are asking a federal court to strike down the election law Mayor John Cook is citing as unconstitutional censorship of free speech.

"Pastors and churches shouldn't live in fear of being punished by the government for exercising their constitutionally protected right to free speech," said ADF Senior Legal Counsel Joel Oster in a statement. "No law or government official can rob a faith group of its constitutionally protected rights just because that official would prefer not to be removed from office."

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The legal filing is actually a step up in an ongoing battle over how churches can or can't legally be involved in politics, a struggle that has involved not only the ADF, but also Americans United for the Separation of Church and State, and that could make its way to the Supreme Court.

The controversy stems back to November 2010, when El Paso voters, by popular petition, passed an ordinance prohibiting the city from extending benefits to unmarried domestic partners, which would include homosexual couples.

Yet certain members of the city council voted to rescind the ordinance passed by the voters, and the mayor approved. The move prompted a grassroots campaign – including church members and leaders – to circulate a petition demanding recall of the offending city officials.

Mayor Cook then filed suit alleging the Word of Life Church of El Paso, Pastor Tom Brown, ElPasoans for Traditional Family Values and others violated Texas election law by circulating the petitions, which succeeded at prompting a recall election scheduled for next May.

Specifically, the Texas Election Code states: "A corporation or labor organization may not make a political contribution in connection with a recall election, including the circulation and submission of a petition to call an election."

And while ADF argues church members distributing a petition is not a "political contribution," Americans United reported the effort to the IRS, claiming "federal law prohibits non-profit groups from intervening in elections."

Americans United also sent a letter to the state attorney general, enclosing a copy of its complaint to the IRS and requesting a state investigation as well.

Furthermore, the El Paso Times reports, several lawyers and "experts" see the case as a potential opportunity for the U.S. Supreme Court to clarify its controversial 2010 decision, Citizens United v. Federal Election Commission.

The Citizens United decision opened the door for corporate political expenditures but has left several of the attorneys the Times quoted questioning how it should be applied.

"This is a very live question," Richard Briffault, a Columbia University law professor told the Times. "It could go either way."

Attorneys for the churches argue, however, that the mayor is misapplying the law in an attempt to "silence" those who want him recalled.

"The recall petitions were circulated and submitted in full accordance with the law," said Oster, "and [Mayor Cook] cannot stop the election just because he doesn't like the fact that some groups participated in a legitimate effort that he doesn't favor."

The ADF lawsuit insists that Jesus Chapel and Pastor Hoyt merely want to be able to "fully participate as citizens within the community, including circulating petitions to hold recall elections, without fear of punishment arising from the enforcement of an unconstitutional state election law against them."

ADF attorneys are seeking an injunction that bars Cook from using the law to stop the church from circulating recall petitions. The suit also requests a declaration that the law itself is unconstitutional.