The Texas Supreme Court rules that the Houston City Council must repeal the Houston Equal Rights Ordinance (HERO) or place it on the November ballot.
By John Wright
Delivering a setback to LGBT rights and dropping a bombshell on November municipal elections, the Texas Supreme Court ruled July 24 that the Houston City Council must repeal the Houston Equal Rights Ordinance (HERO) or place it on the ballot.
It wasn’t immediately clear whether the city could do anything to challenge the court’s shocking decision, but most observers expected the council to place HERO on the November ballot. Either way, the ruling has again thrust LGBT rights to the forefront of Houston politics, ensuring that HERO will be a major issue in the mayoral election and 16 City Council races.
The Supreme Court also ordered the city to suspend enforcement of HERO, which prohibits discrimination based on sexual orientation and gender identity in employment, housing, public accommodations, and city contracting.
Mayor Annise Parker and other LGBT advocates predicted that if HERO appears on the ballot, voters will uphold the law.
“No matter the color of your skin, your age, gender, physical limitations, or sexual orientation, every Houstonian deserves the right to be treated equally,” Parker said in a statement. “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’s decision came on a writ of mandamus that was filed by opponents of the ordinance last August, seeking to force the city to accept city secretary Anna Russell’s initial certification of their petition to repeal it. Separately, anti-LGBT groups filed a lawsuit in district court, where both a judge and jury determined earlier this year that the petition didn’t have enough valid signatures due to problems such as rampant forgery. An appeal of that decision is still pending, but the Supreme Court’s ruling essentially nullifies the case.
After Russell certified the repeal petition, then-city attorney David Feldman, along with Parker, intervened and rejected it. But the court ruled that the City Council had a ministerial duty to accept Russell’s certification, regardless of how many signatures were invalid.
“But what of the City Council’s complaints of forgery, false oaths, and the like?” the elected, all-Republican Texas Supreme 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.”
Anti-LGBT activists who led the petition drive to repeal the ordinance, and later filed the lawsuits, cheered the ruling. One member of the anti-LGBT coalition, Pastor Steve Riggle, said in a radio interview earlier this year that the groups had already spent $500,000 to fight the ordinance.
Former Harris County Republican Party chair Jared Woodfill, one of the plaintiffs, responded to the ruling by calling on Parker to apologize to the city, claiming the ordinance represents her “personal agenda” and saying her actions were “unlawful.”
Dave Welch, executive director of the Texas Pastor Council, said he was “grateful to God for bringing justice back to Houston.”
“We are thankful to the court for seeing through the veneer of deception used by the City to abuse the law and attempt to silence the voices of the people,” Welch said.
Reaction to the decision even extended into statewide politics, where Republican leaders also cheered it.
“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,” Governor Greg Abbott said in a statement. “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.”
A coalition of pro-LGBT groups—including Equality Texas, the Human Rights Campaign, and Lambda Legal—noted that in addition to sexual orientation and gender identity, the ordinance protects 13 other classes against discrimination, including women and members of the military.
“HERO embodies Houston values, and we are confident that the voters will uphold it, should it end up on the ballot this fall,” the groups said. “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.”
Indeed, the business community’s influence could be key to the ballot fight, as some 300 Texas-based companies—including more than a dozen from the Fortune 500—have signed a pledge in support of LGBT inclusion from the group Texas Competes. And Councilwoman Ellen Cohen—a strong proponent of the ordinance—suggested HERO’s defeat could lead to major events pulling out of Houston.
Political observers predicted that regardless of whether City Council repeals HERO or places it on the ballot, the ordinance becomes an even bigger factor in city elections. The council could repeal the ordinance and pass it again next year, but either way, candidates will be forced to take positions on the issue.
Five mayoral candidates—State Representative Sylvester Turner, former U.S. Representative Chris Bell, City Council Member Steve Costello, former Harris County Sheriff Adrian Garcia, and Marty McVey—have already come out in favor of HERO, and some have issued statements criticizing the court ruling.
Meanwhile, a group dedicated to defending the ordinance, HouEquality, was already signing up volunteers on its website.
“If we are going to make sure people know the truth about HERO we will need involvement from supporters like you,” the group said. “We will need you to talk to your neighbors, get active on social media, host a house party and help us reach out to voters across the city of Houston.”