Poor Greg Abbott. Every time he gets around to smacking down a law designed to give the LGBT community the same rights as everyone else, another one pops up. He just can't win what is now the country's hardest game of whack-a-mole since the boardwalk in New Jersey burned down two weeks ago. Rather than a carnie, however, Abbott is facing down laws from San Antonio, the home field for Democratic mayor Julian Castro.
As Burnt Orange Report writer Omar Araiza reported on September 5, the San Antonio City Council voted to pass a non-discrimination ordinance (NDO) that specifically condemned discrimination against members of the LGBT community.
To see Greg Abbott's strategic problem with LGBT protections, read below the jump. LGBT PROTECTIONS UNCONSTITUTIONAL?
On September 6, according to Texas Public Radio (TPR), Texas Attorney General and gubernatorial candidate Greg Abbott claimed that San Antonio's non-discrimination ordinance (NDO) violated the Texas Constitution and the First Amendment to the U.S. Constitution on speech and religion grounds. TPR also stated that Abbott had raised the possibility of a legal challenge to the NDO – if not by his office, then by another party with standing to do so.
TPR reported Wednesday that San Antonio slightly modified the language of the NDO and passed it (still with the LGBT protections), and that in light of the new language, the Attorney General's office changed its tune:
In a statement, Lauren Bean, Abbott's deputy communications director, praised city leaders for removing the language that many felt to be in violation of the Texas and U.S. Constitutions.
“We are pleased the city council heeded our advice and deleted this provision, which surely would have been grounds for a constitutional challenge to the ordinance,” Bean said.
“We will continue to review the ordinance and monitor the situation,” she said.
AG ON SHAKY LEGAL GROUND
It's not clear precisely what the Attorney General's office is going to monitor. Government entities are free to establish that they will not discriminate against persons on the basis of immutable characteristics – such as race, ethnicity, or gender. They're even free to prohibit discrimination on the basis of characteristics that are not immutable – such as religion. In fact, in any of these cases, not only are they allowed to declare that a city and its employees will not discriminate on such bases, they are constitutionally prohibited from actually engaging in that discrimination.
Religion, race, ethnicity, and gender are part of protected classes – groups of people that constitutional jurisprudence has seen fit to protect from the historical demons that have haunted us as a nation. Sexual orientation and gender identification, however, are not yet protected classes under constitutional law, though the movement to make them so is gaining traction, and a growing body of law supports this position.
In the meantime, however, while the law is not yet well-settled and few – if any – court mandates necessarily command (or prohibit) public officials to accept the LGBT community as a protected class, then how an official interprets his duties or rights under the law betrays less his fealty to the law than his personal preferences – the very problem San Antonio's ordinance was designed to defeat. A person who obstructs laws designed to halt discrimination against a disenfranchised and alienated class of their fellow citizens does so not under the protection of the law but under the impulse of personal belief or an eye to certain constituents.
This is not the first time Greg Abbott has tangled with a home-rule Texas municipality concerning equal protection for members of the LGBT community.
In April, Abbott responded to an inquiry from State Senator Dan Patrick concerning domestic partnerships. Patrick had asked if the Texas Constitution prohibited cities such as Austin from recognizing and providing domestic partnership benefits to their employees.
In a non-binding, six-page opinion, Abbott had written that the Texas Constitution did, in fact, forbid such domestic partnership benefits, such as those found in Travis County, the City of Austin, Pflugerville ISD, El Paso, Fort Worth, the City of San Antonio, and El Paso County.
And of course, Abbott's office is opposing same-sex divorce before the Texas Supreme Court.
Texas – small government; big interference.