San Antonio LGBT nondiscrimination ordinance passes 8-3, criticized as 'unprecedented'

by Jerry Pierce & David Roach/Southern Baptist TEXAN, posted Friday, September 06, 2013 (one year ago)

SAN ANTONIO (BP) -- The San Antonio City Council passed by an 8-3 vote a controversial ordinance Thursday (Sept. 5) by which city officials can be removed from office and businesses made liable if they demonstrate "a bias in word or deed" on the basis of sexual orientation or gender identity.

For businesses that offer services to the general public, the ordinance makes such discrimination a Class C misdemeanor punishable by fines of up to $500.

Last-minute amendments clarified that the measure does not require businesses to allow transgendered persons to use restrooms or locker rooms intended for people of the opposite sex -- a change that angered some of the ordinance's supporters.

Several previous amendments attempted to calm a swell of opposition. Thanks to one amendment, a "religious corporation, association, society or educational institution" may limit employment to members of the same religion. Another amendment added the qualifier, "Nothing herein shall be construed as requiring any person or organization to support or advocate any particular lifestyle or religious view, or advance any particular message or idea."

Still, the ordinance is "one of the most dangerous constitutional violations Liberty Institute has ever seen" limiting free speech and religious liberty, the conservative advocacy organization said in a news release.

"The ordinance is a cloudy and confusing collection of poorly thought out and conflicting statements that could have been more clearly and cleanly handled by simply including a broad religious liberty exemption to protect the free speech and religious liberty rights of both individuals and organizations that have religious objections to the requirements mandated by the ordinance," said Kelly Shackelford, president of Liberty Institute, based in Plano, Texas.

The ordinance "should alarm every American who values their religious freedom" and has ramifications that "could go far beyond San Antonio," Shackelford said.

Multiple legal groups have vowed to challenge the ordinance in court as unconstitutional while elected officials, including U.S. Sen. Ted Cruz (R.-Texas) and Texas Attorney General Greg Abbott, have raised concerns as well.

City officials received 11,000 opposition emails in the weeks leading up to the vote, and five City Council meetings on the ordinance drew hundreds of residents who expressed their opposition. In an Aug. 28 meeting, city officials appeared confused about the measure's legal consequences, with the city's attorney struggling to answer questions and expressing concerns that he was embarrassing himself.

Jonathan Saenz, president of Texas Values, an organization affiliated with Liberty Institute, called the ordinance "radical" and said "a majority of the people of San Antonio oppose" it.

"This ordinance will be used as a weapon against people of faith and family values just as other laws have been used in other states," Saenz said in a statement. "The ordinance lacks transparency, lacks evidence of a real need and is plagued with major constitutional concerns. The question now is when will the first legal challenge begin and what will the cost be to taxpayers at the end of the litigation that will certainly come."

The ordinance prohibits any "appointed official or member of a board or commission" from engaging "in discrimination or demonstrat[ing] a bias, by word or deed, against any person, group of persons, or organization on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, veteran status, age or disability, while acting in their official capacity while in such public position."

The ordinance labels "bias" against homosexuals as "malfeasance" and authorizes the city council to "remove the offending person from office." The council voted separately on adding "veteran status," with that language gaining approval 9-2.

Businesses in the city are prohibited from discriminating on the basis of sexual orientation or gender identity, and outside businesses that deal with the city must include in their city contracts a statement that they do not discriminate based on sexual orientation or gender identity.

A section was removed from the ordinance that excluded from city office anyone who had demonstrated bias against homosexuals in the past.

Councilwoman Elisa Chan, who voted against the ordinance, said its advocates attempted to enforce "a dictate to agree," according to San Antonio's Express-News. "I have not heard a single person who said he or she agrees to any form of discrimination," Chan said, according to the Express-News. "Just because I disagree with the lifestyle choices of the LGBT community doesn't mean that I dislike them."

At the Aug. 28 hearing, opponents on hand to testify against the proposed ordinance "clearly outnumber[ed]" its supporters, Saenz reported from the meeting via Twitter.

Apparent confusion among council members prompted councilman Carlton Soules to say the body was not ready to vote. Councilwoman Chan suggested it be put on a city ballot for voters to decide -- a suggestion that drew a standing ovation from meeting attendees.

In the hearing's afternoon session, opponents of the measure -- marked by blue shirts -- made up more than 350 of the 400 people in the room, Saenz reported. But during the evening session, the ordinance's supporters -- marked by red shirts -- made up about half of the crowd, Saenz said, adding that "reports of a 'sea of red' are false."

The crowd was so large that many listened to the discussion in overflow rooms throughout San Antonio's municipal complex.

Whether transgendered people should be allowed to use any restroom they choose was a significant part of the discussion, with some gay rights activists saying they were opposed to the ordinance because it did not protect the right of men to use women's bathrooms and vice versa, Saenz recounted. Earlier in the day councilman Diego Bernal, who spearheaded the ordinance, floated a new draft specifying that the measure would not change the city's laws prohibiting the use of restrooms for "persons of the opposite sex."

Among Saenz's tweets from the meeting:

-- "SA atty admits no analysis of other cities with LGBT ordinances, but says 'they seem to have worked.'"

-- "SA city atty having major trouble answering basic questions on ord, confused about if 'religious exemption' cover[s] all sections of ordinance."

-- "San Antonio City Council shows officials are confused & concerned about LGBT ordinance, even city attorney didn't have grasp on it."

"This proposed ordinance contains some of the most blatant and unprecedented violations of the religious freedom of Texans that I have ever seen," Saenz said in a statement earlier on Aug. 28. "This extreme power grab by the government shocks the conscience and tarnishes the legacy of the city of San Antonio that is so rich in religious heritage. If passed, this ordinance will be used as a weapon to silence people of faith and to punish people who hold a traditional view of marriage and sexuality. If Mayor [Julian] Castro and Councilman Diego Bernal were looking for a way to divide people in the city of San Antonio, they have found it."


Jerry Pierce is managing editor of the Southern Baptist TEXAN (www.texanonline.net), newsjournal of the Southern Baptists of Texas Convention. David Roach is a writer based in Shelbyville, Ky. This article is adapted from a Sept. 6 report by Roach following reports in the TEXAN Digital, electronic magazine of the SBTC.

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