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HOUSTON – The Texas Supreme Court directed the Houston City Council July 24 to abide by its own charter and repeal the controversial Equal Rights Ordinance (ERO) or put it up to a city-wide vote this November. The city has until Aug. 24 to comply or be compelled to do so by the high court.
In a rare move, the Texas Supreme Court conditionally granted a writ of mandamus stating that “the legislative power reserved to the people of Houston is not being honored.” Last year, Mayor Annise Parker and then-City Attorney Dave Feldman declared “invalid” a referendum to repeal the controversial city ordinance. Petitioners—a racially and politically diverse group of pastors and civic leaders—sued, alleging the mayor and attorney manufactured signature requirements in order to defy the city charter mandates. The court agreed with the petitioners July 24, stating the city secretary, not the city council, is obligated to evaluate petitions.
Enforcement of the ordinance is suspended.
“Simply put, the City Secretary’s certification started the process outlined in the Charter for reconsidering ordinances following a referendum petition, invoking the Council’s ministerial duty to carry out its obligations,” the court wrote.
That is what Andy Taylor, attorney for the pastors’ coalition, has said all along.
“The only person who calls balls and strikes is [City Secretary] Anna Russell,” Taylor told the TEXAN. “They can’t ignore her and force us to sue.”
In a statement released late Friday, Parker wrote, “Obviously, I am disappointed and believe the court is in error with this eleventh hour ruling in a case that had already been decided by a judge and jury of citizens.”
At issue was the “validity” of petition signatures—those of the signers and the circulators. Attorneys for the city argued in court in February the signatures did not meet a prescribed standard and therefore invalidated the petition. Taylor countered that the city created the standards in an effort to keep in force an ordinance the mayor called “deeply personal.”
The jury and judge disagreed, and the plaintiffs lost the initial trial. The coalition appealed to the Texas 14th Court of Appeals. And with a mid-August deadline for placing the referendum on the city ballot, plaintiffs asked for an expedited hearing. Their request was denied, and the appeal was put on the normative months-long track for a hearing. That would have put any ballot measure off until 2017.
Acknowledging the plaintiffs were pressed for time, the high court wrote, “Under such circumstances, mandamus has long been recognized as an appropriate remedy when city officials improperly refuse to act on a citizen-initiated petition.”
Dave Welch, executive director of the Houston Area Pastors Council, the group that spearheaded the petition drive, was grateful for the ruling. Feeling vindicated, he said, “Obviously, we thank the Lord for providing the perseverance and commitment on the part of our pastors, Andy, and our financial supporters,” said Welch. But, he added, “This is a battle we should not have had to fight.”
The coalition charged the ERO created “special rights” for Houston’s LGBT community at the risk of compromising the Constitutional rights afforded citizens, especially people of faith. The ordinance also permits citizens to use the public bathroom of the gender with which they identify—allowing biological males who identify as female to use the women’s bathroom. The referendum garnered 55,000 signatures. Of those, Russell certified 17,846—more than enough to send the ordinance back to the city council for repeal or vote by the citizens.
“The mere existence of the City’s challenge to the petition does not negate the City Council’s duty to proceed with the political process,” the court wrote. “To hold otherwise would be to allow cities to freely shirk their obligation to follow through on properly certified petitions.”
In her statement, Parker said the city would proceed as directed but “at the same time, we are consulting with our outside counsel on any possible available legal actions.”
Taylor said there is no legal recourse since the court has spoken. If the city fails to act according to its City Charter, the writ of mandamus will be issued, forcing the city to comply.
Parker and Welch are confident their sides will prevail in a city vote.
“We fought for the right to vote and we look forward to that challenge,” Welch said. “It’s time for the church to act.”
