Attorney General Greg Abbott says he’s looking to see if he has the power or, “standing” as they say in legal circles, to sue the city of San Antonio over its vote last week to add sexual orientation and identity to an anti-discrimination ordinance that already included race, religion and nationality.
If Abbott, who’s running for governor, doesn’t file a suit, two of the three leading Republican candidates to succeed him as AG promise they will.
“If you pass this ordinance, we’ll see you in court when Ken Paxton is attorney general,” warned a fund-raising letter on the state senator’s web site.
Railroad Commissioner Barry Smitherman also said he would challenge the ordinance if he’s elected attorney general.
The third AG candidate, Rep. Dan Branch, voiced his opposition but did not say he would sue.
Welcome to Texas in the wake of Ted Cruz’s stunning upset of Lieutenant Governor David Dewhurst in last year’s U.S. Senate race.
When Houston, Dallas, Fort Worth, Austin and El Paso passed gay-friendly ordinances, they sometimes stirred up local controversy, but pretty much escaped statewide attention.
But ironically, as polls show rejection of discrimination against gays getting ever-growing majorities nationwide and in Texas, candidates in the Republican primary feel the need to play to what they see as the Tea Party imperative.
Abbott doesn’t bash gays in his warning.
He’s just worried about language in the ordinance that he thinks will punish those who do bash gays.
But such language was in the previous anti-discrimination ordinance for years.
“No person shall be appointed to a (city) position if the City Council finds that such person has, prior to such proposed appointment, engaged in discrimination or demonstrated a bias, by word or deed, against any person, group or organization on the basis of race, color, religion, national origin, sex, age or handicap.”
This is very disturbing language.
Under it any Christian who said she thought Jews were going to hell might be barred from office.
But it didn’t seem to disturb anyone until Councilman Diego Bernal sought to add gays and transgendered persons to the list.
Bernal, himself a civil rights lawyer, took out that language early in the drafting process.
It is no longer in the ordinance.
A surviving section, however, does include similar language.
“No appointed official or member of a board or commission shall engage in discrimination or demonstrate a bias, by word or deed, against any person, group of persons, or organization (based on race, color, sexual orientation, etc.) while acting in their official capacity while in such public position.”
A board member or other official who violates this section can be removed by City Council.
This is the section Attorney General Abbott has focused on.
“I believe that violates the First Amendment – both freedom of speech and freedom of religion,” he said.
But even here, Councilman Bernal made a significant change.
Previously the ordinance forbade such speech by a city appointee or official “while serving in such a public position.”
By changing the language to “while acting in their official capacity,” Bernal preserved the right of a city official to say he believes gays will burn in hell, as long as he doesn’t, for example, bring that opinion into an official session discussing a zoning change or vote to deny a zoning change because the applicant is gay.
So Abbott and his would-be successors are beating up on City Council for an ordinance that is actually more respectful of the First Amendment than the one that was already on the books.