UPDATED (1st & 5th paragraphs) Thursday, April 23, 9:05 a.m.
HOUSTON (BP) — The Houston Equal Rights Ordinance is now in effect, codifying protected class status based on sexual orientation and gender identity, following a local judge’s ruling April 17.
“We will appeal,” Dave Welch, executive director of the Houston Area Pastors Council, told the Southern Baptist TEXAN, “and we will fight for justice, what is right before God, and for the rule of law all the way to the Texas Supreme Court.”
District Judge Robert Schaffer rendered a post-trial judgment April 17 on a jury’s mixed findings in a February trial involving a range of city legal issues over what constitutes a valid signature on a petition. Schaffer spent two months sorting through the jury’s verdict as well as ongoing legal motions from both the city and opponents of the ordinance.
Schaffer’s ruling credited the petition drive with 16,684 valid signatures — 585 short of the 17,269 requirement that would have placed the ordinance on the ballot last November, or 10 percent of the votes cast in the last mayoral election. The petition for a referendum was launched after Houston’s city council passed the controversial measure, called HERO by its supporters, in an 11-6 vote last May.
Opponents of HERO — led by the multi-ethnic No UNequal Rights Coalition — subsequently gathered nearly 54,000 signatures. Petitions circulated by 98 individuals underwent extensive legal challenges by city officials last August, at one point dropping the number of valid signatures to 3,905, though the petitions had notary public verifications.
Houston Mayor Anise Parker, a self-avowed lesbian who made the ordinance a top priority, celebrated the April 17 ruling by Schaffer of Houston’s 152nd District Court.
“We have a HERO!” Parker wrote on her Twitter feed. “We passed a good ordinance. We were right to reject repeal petition; jury agreed with us, judge agreed with us!”
The city’s lead attorney, Geoffrey Harrison, called Schaffer’s ruling and the earlier jury verdict “a powerful smack-down against the forces of discrimination and intolerance,” the Houston Chronicle reported. “Maybe, just maybe, they’ll reconsider their misguided ways,” Harrison said. City attorney Donna Edmundson lauded Schaffer for “confirming that [the opponents’] pro-discrimination referendum petition failed.” Edmundson took office after David Feldman, who had led the city’s scrutiny of the petitions, resigned from the position in November.
Neither the jury nor Schaffer agreed with the city’s claim that fraud had been committed during the petition drive.
Andy Taylor, lead attorney in challenging the city’s dismissal of the petition drive, criticized Schaffer for accepting the defense argument requiring all petition circulator signatures be legible. In doing so, Taylor said the judge opened the door for the city to broaden its scope of “illegible” signatories — if the circulator’s signature at the bottom of a page was illegible, then all voter signatures collected on that page were invalidated.
On that point alone, Taylor said, the defense’s number of invalid signatures jumped from 2,500 at the end of the trial to 8,500 in Schaffer’s ruling on that part of the case.
“So that’s what the case ended up turning on,” Taylor said.
The legibility argument sets a “dangerous” precedent, making the judge the sole arbiter of legibility and, ultimately, which voter signatures will be counted on the petition. Taylor argued the dismissal of voter signatures based on circulator penmanship establishes a de facto challenge to an individual’s right to vote.
Taylor said he is confident thousands of voter signatures will be reinstated on the appeal to be filed in one of the Texas Court of Appeals districts in Houston. But the loser at that level could appeal to the Texas Supreme Court.
In addition to the battle over the ordinance, the case — and Parker — drew national attention when, during the city’s investigation for the lawsuit, attorneys for the city filed subpoenas against five Houston pastors who were leaders in the coalition but not parties to the lawsuit. The court order called for records from sermons and discussions with church members about HERO and about homosexuality. Religious liberty advocates across the nation cried foul. The city backed down and Parker had the orders withdrawn.