Nondiscrimination Ordinance Battle Goes Statewide

As fights brew in several Texas cities over nondiscrimination ordinances protecting gay people, state lawmakers are poised to dive into the fray.

Since 2013, San Antonio, Houston and Plano have passed ordinances that offer lesbian, gay, bisexual and transgender people certain protections against discrimination in employment, housing and public places like restaurants. In Houston and Plano, opponents of the ordinances are seeking to repeal them. Dallas, Austin and Fort Worth have had such ordinances for more than a decade.

Now, some Republican lawmakers — including state Rep. Jeff Leach of Plano and state Sen. Donna Campbell of New Braunfels — say they plan to take aim at the city ordinances. Among those who have opposed such ordinances are Lt. Gov. Dan Patrick and Gov. Greg Abbott, who, when he was the state attorney general, said the San Antonio ordinance would stifle speech and repress religious freedom.

Campbell is "concerned about the hostility that we are seeing towards Texans of faith, especially in regards to some of these local city ordinances," said Jon Oliver, a spokesman for the senator.

This comes as the U.S. Supreme Court prepares to consider whether same-sex marriage should be legal and a federal appeals court weighs whether to strike down Texas' ban on same-sex marriage. And it foreshadows the next landmark gay rights issue the high court might address, said Texas A&M University law professor Meg Penrose: the balance between religious liberties and gay rights.

"You're talking about competing individual freedoms," Penrose said. "The religious liberty issue really is the next big question. It's very hard to predict." 

Advocates for gay rights say the ordinances are needed to ensure the safety in public spaces of all Texans, regardless of sexual orientation or gender identity. And they say efforts to target the ordinances are a backlash against recent same-sex marriage victories in federal courts across the country.

“The more advances we make on behalf of equality for the LGBT community, the more threatened our opponents become — and this is the way they lash out,” said Equality Texas Foundation President Steve Rudner. “The people on the other side are losing, they know they’re losing, and it’s freaking them out. And their response is to lash back in ways that are clearly illogical.”

A proposal filed by Campbell calls for asking voters to amend the state constitution to say that "government may not burden an individual's or religious organization's freedom of religion or right to act or refuse to act in a manner motivated by a sincerely held religious belief."

Campbell filed similar legislation last session; it did not gain traction. An aide to Leach said Friday that the representative is working on a proposal related to the ordinances that seeks to protect religious liberties.

“After hearing from concerned citizens, business owners and community leaders from all across Texas, I look forward to leading the charge, in conjunction with my colleagues in the Texas House and Senate, to craft legislation that aims to protect religious liberty and the fundamental Constitutional rights of Texans," Leach said in a statement.

Before Plano passed its nondiscrimination ordinance in December, Leach was one of several Republican lawmakers who signed a letter opposing it. He was joined by Rep. Pat Fallon, R-Frisco; Rep. Jodie Laubenberg, R-Parker; and Rep. Matt Shaheen, R-Plano.

State Rep. Jason Villalba, R-Dallas, has filed a proposed constitutional amendment similar to Campbell's, but he said he is not targeting city ordinances; rather, he's seeking to ensure the right of a county courthouse to display a Nativity scene or a high school valedictorian to speak about God.

“Our legislation was in no way intended to limit the ability of municipalities or cities to implement this type of ordinances that they believe might be beneficial to their community,” Villalba said. He declined to say whether he supported the nondiscrimination ordinances.

Daniel Williams, a legislative specialist with Equality Texas, said Texas already has protections for religious liberties. He pointed to the Texas Religious Freedom Restoration Act, which was passed in 1999.

“We have strong religious liberties protections in this state that work well,” Williams said. Legislation like that filed by Campbell and Villalba "isn’t about the protection of religious liberties, it’s about overturning good law that we’ve had for a decade and a half and replacing it with a broad exemption."

Opponents of ordinances in Houston and Plano say they have gathered enough signatures to force voter referendums on the matter. Houston denied the opponents' petition, saying too many of the signatures were invalid, and the city is now embroiled in a lawsuit with the opponents. Plano city officials received the signatures and are still in the process of verifying them, a city spokesman said Friday.

“The ordinances create a category of protected characteristics that is simply indefensible legally. It addresses a problem that doesn’t exist and creates a criminal class for people who believe in the traditional Judeo-Christian viewpoint of marriage, family and gender,” said Pastor Dave Welch, a leader of the Texas Pastors Council and one of the opponents of the ordinances. “We can’t just sit back and let that freedom be taken away without opposition.”

Before Houston's City Council passed its ordinance last year, more than 200 people testified — including a mother of a transgender daughter who said that when LGBT youth grow up, "there is nobody there to protect them from the bullying." 

Rudner said the ordinances protect LGBT people from workplace discrimination — a protection not offered by federal or state law. According to a 2013 survey from the Pew Research Center, about 21 percent of LGBT adults faced discrimination in the workforce.

“We have nondiscrimination ordinances in place, and nothing bad has happened to anyone. It hasn’t interrupted anyone’s life, it hasn’t intruded on anyone’s liberty,” Rudner said. “The cities are frustrated by the failure of our state Legislature to adopt a statewide nondiscrimination ordinance.”

These ordinances aren’t new to Texas. In 2000, Fort Worth became the first major Texas city to update its nondiscrimination ordinance to include protections for sexual identity. Then-Fort Worth Mayor Kenneth Barr said he couldn’t remember facing the kind of opposition council members in Houston and Plano have faced.

“Frankly, I don’t remember any specifics of the debate about it," Barr said this week. "That speaks to the fact that we passed it without a whole lot of fanfare."

Disclosure: Texas A&M University is a corporate sponsor of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.