Texas Supreme Court: Repeal HERO or put to public vote

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The Texas Supreme Court ordered the Houston City Council on Friday to repeal the Houston Equal Rights Ordinance or place it on the November ballot.

The state's highest court also ordered the city to immediately halt enforcement of HERO, which prohibits discrimination against LGBT people in employment, housing, public accommodations, and city contracting. (Read the ruling below)

The court handed down its ruling Friday in a case brought by former Harris County Republican Party Chair Jared Woodfill and other anti-LGBT activists. The court's ruling effectively overrides a district judge's April decision saying the petition to repeal the ordinance lacked enough signatures due to problems including widespread forgery. The opinion says that because City Secretary Anna Russell initially certified the petition, concluding it had enough valid signatures, the City Council had a ministerial duty to repeal HERO or put it up for a public vote.  

“But what of the City Council’s complaints of forgery, false oaths, and the like?” the all-Republican court wrote in its 12-page per curiam opinion. “Although these issues were addressed at trial and are now pending before the court of appeals, we note that the City Secretary never claimed the referendum petition was plagued by forgery or perjury. Yet the City Council decided, of its own accord, not to act, disregarding the City Secretary’s certification that the petition had enough signatures.”

The court ordered the City Council to repeal HERO by Aug. 24 or put it to a public voter in November.

After Russell certified the petition, then-City Attorney David Feldman intervened and said too many of the signatures were invalid. Opponents of the ordinance, including the Texas Pastor Council and the Conservative Republicans of Texas, immediately filed a lawsuit, as well as a petition for mandamus from the Texas Supreme Court. 

HERO opponents claimed they gathered more than 30,000 signatures, but the city rejected the petition last August, saying it had only 16,500 valid signatures, fewer than the 17,269 needed.

In a damning indictment of the petition drive to repeal the ordinance, the jury found evidence of forgery by 12 of 13 circulators in question, according to Harris County court records. Jurors also found that 12 of 13 circulators' affidavit oaths were not true and correct, and that six of 13 circulators submitted pages including “non-accidental defects.” 

The jury found no evidence of fraud among circulators — defined as “a knowing misrepresentation of the truth or concealment of a material fact to induce another to act.” However, it found that 65 of 98 circulators failed to properly sign and subscribe petition pages.

Taking into account the jury's findings, State District Judge Robert Schaffer determined that the petition fell 565 signatures short. 

The anti-LGBT groups, calling themselves the No UNequal Rights Coalition, appealed. But the Texas Supreme Court's ruling on their petition for mandamus essentially nullifies the case. 

The Texas Pastor Council planned a noon press conference Friday to discuss the decision. 

Here's Woodfill's reaction to the ruling, according to the Houston Chronicle: 

“This is all about the mayor and her personal agenda,” Woodfill said. “The actions she took were unlawful, and now the court has said the people are going to have an opportunity to vote, and that's all we've asked for from day one. I think this mayor owes an apology to the people of the city of Houston. … 

“You're going to have money pouring in from all across the country on this issue because it's extremely important,” Woodfill said. “We're going to be looking at mayoral candidates, city council candidates that stand with us on this important issue. The eyes of the country are going to be looking at Houston.”

Council member Ellen Cohen (photo) called the court decision “a real shame.” Cohen helped rally votes in favor of HERO. Via the Houston Chronicle:

“I'm disappointed,” Cohen said. “Frankly, in this day and age, particularly with the recent (U.S.) Supreme Court decision (legalizing gay marriage), I think it's a real shame that we're going to have to be debating equal rights in the fourth largest city in the United States.”

'The court is in error'


Mayor Annise Parker (second photo) – who said in April that she would get a HERO win in “the courts or the ballot box” – called the ruling an “error” in a statement issued Friday afternoon and pledged to investigate what legal options exist to challenge it. But she said if HERO goes before voters, supporters will win.

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.  Nonetheless, we will proceed with the steps necessary for City Council to consider the issue.  At the same time, we are consulting with our outside counsel on any possible available legal actions. 

Houston’s Equal Rights Ordinance is similar to measures passed by every other major city in the country and by most local corporations.  No matter the color of your skin, your age, gender, physical limitations, or sexual orientation, every Houstonian deserves the right to be treated equally. To do otherwise, hurts Houston’s well-known image as a city that is tolerant, accepting, inclusive and embracing of its diversity.  Our citizens fully support and understand this and I have never been afraid to take it to the voters.  We will win!

The Supreme Court ruling prompted a flurry of responses, both from LGBT activists and HERO opponents. 

Texas Attorney General Ken Paxton couldn't resist the urge to troll since his efforts to defy the U.S. Supreme Court ruling on gay marriage went nowhere.


And Houston mayoral candidate Ben Hall applauded the court ruling.


Other anti-gay activists cheered the decision.


And Gov. Greg Abbott called the decision “appropriate.”

“Freedom of expression can only exist once government removes itself from stifling free speech, repressing religious liberty and interfering with the lives of its citizens. Today’s decision by the Texas Supreme Court appropriately returns jurisdiction over this matter to voters while reassuring the people of Houston that their personal values remain beyond the reach of government.”

Mayoral candidate Chris Bell, one of several wooing LGBT voters, said the city needs HERO.

“I strongly believe that a law protecting the rights of all Houstonians is something that we need. The Texas Supreme Court's ruling today on the Houston Equal Rights Ordinance will likely place that vote on the ballot for this November. I want to urge all Houstonians to support equality and non-discrimination for all people, and I intend to take that message to every part of Houston. Houston is a diverse city and we succeed when all our citizens have equal protection under the law.”


State Rep. Sylvester Turner, another mayoral candidate, said he's confident that voters will uphold the ordinance.

“I support the Houston Equal Rights Ordinance and am confident that voters will uphold the ordinance. Houston is strongest when we work hard, work together, respect each other’s differences and always put the good of the community first.”


Court decision 'beyond disappointing'


Lane Lewis (third photo), the gay chair of the Harris County Democratic Party running for the City Council, blasted the court decision in a series of tweets.




LGBT groups also reacted.






A coalition of LGBT and progressive groups – American Civil Liberties Union of Texas, Equality Texas, Texas Freedom Network, Texas Wins, Freedom for All Americans, Human Rights Campaign and Lambda Legal – criticized the decision in a joint statement and added that “discrimination is bad for business.”

“HERO embodies Houston values, and we are confident that the voters will uphold it should it end up on the ballot this fall. The fact that enforcement of the ordinance has been suspended, despite it being passed by the City Council, places at risk Houstonians who deserve to be treated with dignity and respect. HERO currently protects 15 different classes—including sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity and pregnancy—in employment, housing and public accommodations.

“Houston cannot afford to be the one of the largest, most culturally diverse and business-friendly cities in the nation without comprehensive anti-discrimination protections. Discrimination is bad for business. But we believe Houston voters will agree that everyone who lives in and visits this great city has the right to be free from discriminatory and unequal treatment.”



This story was updated to include responses from Mayor Annise Parker, along with HERO supporters and anti-gay activists.


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