City pushes same-sex benefits in voter defiance

John Cook

The road to the state Supreme Court appears to be open now for citizens in El Paso, Texas, who fought a city administrative decision to grant same-sex partners benefits and found themselves being sued because of their actions.

Attorneys representing the citizens announced recently that the state Supreme Court decided not to put a hold on a ruling from the Texas Court of Appeals, and the case now moves move forward at the highest state court.

"Churches and ministries shouldn't live in fear of being punished by the government for engaging in free speech protected by the First Amendment," said Joel Oster, senior legal counsel for the Alliance Defense Fund.

"The substance of our argument in that regard is alive and well at the Texas Supreme Court. All the high court decided [already] was that it would not put a hold on the ruling from the Texas Court of Appeals. It has not yet ruled on the substance of our case or on our motion for an expedited appeal," he said.

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Also working on the case are the James Madison Center for Free Speech and others.

The case has been highlighted by a recorded statement from the city's mayor that one person who objected to city council actions could take her free speech and go outside.

The dispute revolves around a vote by residents in the city to not grant benefits to same-sex partners. City officials then voted to overturn the voters' decision.

A large number of citizens, including members and leaders of several church organizations, circulated petitions to recall the mayor and two others who supported the abrogation of the voters' decision.

City officials, however, sued them, alleging a church may engage in speech about a ballot measure only by contributing to a ballot-measure committee. They also alleged the defendants' activities seeking a recall election were illegal.

The district court had ordered the recall election to go forward, but the appeals court halted it.

Attorneys say if that decision stands, the defendants could be prosecuted criminally for circulating petitions to recall a mayor.

But according to the Madison Center, Texas courts are not allowed to stop an election, and the defendants did not make any illegal contribution because there was no transfer of funds.

They also said the state may not force a church or individuals to be a political committee to engage in political speech.

James Bopp Jr., with the center, said, "People have the right to spend freely to seek a recall election for a public official. Texas campaign finance law, however, makes these expenditures illegal by requiring a PAC to be created through which these expenditures must be made.

"We hope the Texas Supreme Court intervenes to prevent this injustice that threatens criminal penalties against this church,” he said.

The issue arose when voters in November 2010 passed an ordinance prohibiting unmarried domestic partner benefits in their city.

Several members of the city council refused to follow the will of the vote and voted to rescind the ordinance approved by voters. Mayor John Cook joined in the effort.

That prompted a grassroots recall campaign seeking to remove the mayor and council members who violated the will of the people.

The mayor subsequently sued Tom Brown Ministries, Word of Life Church of El Paso, El Pasoans for Traditional Family Values and local citizens who circulated recall petitions. He cited a Texas election law, arguing that it prohibits churches from circulating a petition.

A separate federal lawsuit has been filed to have the city's mandate declared unconstitutional.

A video made at the peak of the conflict reveals Cook's apparent disdain for others who want to state their opinion.

The video shows the mayor gives a woman, who was addressing the city council on the issue of its criticism of faith and churches, only some 70 seconds to talk. The mayor is then seen telling her to take her "freedom of speech outside."

Elizabeth Branham approached the podium during the public comment section of the council meeting.

"I'm here not to chastise you for your obvious lack of civility and decorum, nor address your permissiveness in allowing certain council members to personalize their attacks on certain speakers at this podium. Mayor, you specifically stated at last week's city council meeting June the 14th that you would not allow personal attacks yet you let it happen anyway. Mr. O'Rourke, you stated at last week's public hearings that you want to be remembered for decades for the decisions you made at city council. You will be remembered, sir, for many things. Last week, you wrongfully and disrespectfully attacked Father Michael Rodriguez and the moral failings of the Catholic church. You stated that Fr. Rodriguez was taking the moral high ground in this debate and I quote you as stating. I think there is fair folks, totally out of line. ..."

"Thank you, your time is over," said Cook. "If you can't remove yourself from the podium, I'll have you removed. Yeah. You can take your freedom of speech outside."

See the video: