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Debunking The Lies About San Antonio's Proposed LGBT Non-Discrimination Ordinance

August 02, 2013 9:33 am ET

Right-wing media outlets have smeared a proposed measure in San Antonio to expand the city's non-discrimination policy to include sexual orientation and gender identity, falsely claiming that the revised measure would limit free speech and religious liberty.

San Antonio City Council Is Considering Ordinance To Expand Its Non-Discrimination Policy

Proposed Ordinance Would Expand Existing Non-Discrimination Policy To Include Sexual Orientation, Gender Identity. According to Current:

The long-awaited vote to determine whether or not the city will allow LGBT residents to be discriminated against is slated for August. The non-discrimination ordinance, proposed by District 1 Councilmember Diego Bernal, prevents gay, lesbian, bisexual and transgender residents from discrimination in hiring and firing, public accommodations, fair housing, city employment, contracts and board appointments by adding sexual orientation and gender identity (and veteran status, regardless of sexual orientation) to the city code. If passed, the measure would put San Antonio on par with other major metro cities in the state like Houston, Dallas and Austin. [Current, 7/31/13]

Ordinance Originally Included Language That Would Allow City Council Members To Consider Prior Anti-LGBT Bias When Making Appointments. According to KTBC Fox 7:

The ordinance, being pushed by San Antonio Councilman Diego Bernal and Mayor Julian Castro, reads "no person shall be appointed to a position if the city council finds such person has, prior to such proposed appointment, engaged in discrimination or demonstrated a bias, by word or deed, against any person, group or organization on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, veteran status, age or disability." [KTBC Fox 7, 7/31/13]

Ordinance Would Add Sexual Orientation, Gender Identity To Current Non-Discrimination Law. San Antonio’s current non-discrimination policy already allows city council members to consider prior bias when making appointments. According to Article 1, Section 2-8 of San Antonio’s Code of Ordinances:

Sec. 2-9. Policy governing appointment of persons demonstrating bias on basis of race, religion, national origin, sex, age or handicap.

No person shall be appointed to a position if the council finds that such person has, prior to such proposed appointment, engaged in discrimination or demonstrated a bias, by word or deed, against any person, group or organization on the basis of race, religion, national origin, sex, age, or handicap. No appointed official or member of a board or commission, shall engage in discrimination or demonstrate a bias, by word or deed, against any person, group of persons, or organization on the basis of race, religion, national origin, sex, age, or handicap, while serving in such public position. Violation of this standard shall be considered malfeasance in office, and the council shall be authorized to take action as provided by law to remove the offending person from office. [San Antonio City Code, accessed 8/2/13]

Myth: Ordinance Threatens Free Speech, Would Ban Christians From Public Office

Fox News' Shannon Bream: Ordinance Is A "First Amendment Rights Issue." On the July 31 edition of Fox News' America Live, guest host Shannon Bream stated:

Major debate over a First Amendment rights issue heating up in San Antonio as the city considers a controversial measure that critics say challenges freedom of speech and religion. A rule could block the hiring of anyone who speaks out against homosexuality because of their moral or religious beliefs, and that includes Christian business owners. [Fox News, America Live, 7/31/13]

Sirius XM's David Webb: Ordinance Disregards The "Right To Believe The Way You Believe." On the July 31 edition of America Live, Webb argued:

The fact is, we have First Amendment rights in this country, and nowhere in this ordinance is there equal protection of First Amendment rights. You have a right to believe the way you believe in America under the Constitution. You also do under the Texas Religious Freedom Act. So you have a state constitution, and [a] United States constitutional issue.

This is not about - this is a broader anti-religion effort done by many groups who want to paint religion as abject enemy of everything that's fair. [...] This is an effort to restrict one person's freedom under the guise of equal treatment. [Fox News, America Live, 7/31/13]

The Washington Times: Ordinance Imperils Freedom Of Speech.  According to The Washington Times' editorial board:

The First Amendment took a hit in San Antonio last week, but the Constitution is still breathing. The San Antonio City Council voted to consider a city ordinance disqualifying anyone who believes homosexual conduct is wrong from serving, ever, on a municipal board. The ban is to be applied "if the City Council finds that such person has, prior to such proposed appointment, engaged in discrimination or demonstrated a bias, by word or deed" against various protected classes, and for the first time to include sexual orientation and "gender identity." [The Washington Times7/30/13]

The Washington Times: Ordinance "Could Effectively Ban Christians ... From Serving On The City Council." According to the Times' report on the ordinance:

According to Pastor Charles Flowers of Faith Outreach International, the amended ordinance includes two new categories to the policy: sexual orientation and gender identity. Judging by the vague language of the draft, the ordinance could effectively ban Christians, many of whom believe homosexuality is a sin, from serving on the city council if they have expressed that belief publicly. [The Washington Times7/24/13]

WND: Measure Would "Discriminate Against All Who Take The Bible At Its Word And Follow It." A WND article claimed:

Think it's hot in Texas these days? Just wait a few weeks, until the San Antonio City Council ends its summer hiatus and resumes work on a proposed change to its nondiscrimination ordinances that apparently will discriminate against all who take the Bible at its word and follow it.

That's because the change creates a penalty for those who ever exhibit a "bias," which clearly could include adopting the Bible's condemnation of homosexuality, with a permanent ban on participation in city government, business or employment. [WND.com, 7/23/13]

Fact: Ordinance Is Consistent With City Council's Longstanding Discretionary Appointment Power

Councilman Diego Bernal: Ordinance Consistent With Council's Longstanding Discretionary Appointment Power. In an interview with Equality Matters, San Antionio City Councilman Diego Bernal, the ordinance's sponsor, stated:

The most important line in that is "no person shall be appointed to a position if the city council finds..." That's not automatic. That's not strict liability. The way that works is, if I'm going to appoint you to a board or a commission, the whole council still has to vote in you as a nominee, right? And my colleagues can vote for or against you for whatever reason they want. All that provision meant was, of the things you can consider are past deeds or words. But I can do that without that provision. I can not vote for you because I don't like your shoes... That's sort of the discretion authority that the council already has. And it's the current law. [Statement to Equality Matters, 7/31/13]

Ordinance Also Prohibits Religion-Based Discrimination. According to Section 2-550 of the proposed ordinance:

Sec. 2-550. - Non-Discrimination Policy.

(a)    It shall be the general policy of the City of San Antonio to prohibit discrimination on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, veteran status, age or disability, as set forth in the Divisions following, unless exempted by state or federal law or as otherwise indicated. [Proposed Ordinance, via OneNewsNow, 7/23/13]

Fact: Ordinance Has Been Revised To Be Consistent With The First Amendment

Language Pertaining To Prior Biased Speech Has Been Struck From The Ordinance. According to the most recent version of Section 2-552 of the ordinance:

Sec. 2-552. - Appointed Officials, Boards and Commissions.

(a)     Appointments to Boards and Commissions.

         When making appointments to boards and commissions, the City shall not discriminate on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, veteran status, age or handicapdisability.  

(b)     Prior Discriminatory Acts.

         No person shall be appointed to a position if the City Council finds that such person has, prior to such proposed appointment, engaged in discrimination or demonstrated a bias, by word or deed, against any person, group or organization on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, veteran status, age, or handicapdisability.

(c) Discrimination by Appointed Officials - Malfeasance.

         (1)  No appointed official or member of a board or commission shall engage in discrimination or demonstrate a bias, by word or deed, against any person, group of persons, or organization on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, veteran status, age or handicapdisability, while servingacting in such public position.

(2)  Violation of this standard shall be considered malfeasance in office, and the City Council shall be authorized to take action as provided by law to remove the offending person from office. [Updated Ordinance Proposal, 7/31/13]

Language Change Is Aimed At Allaying Free Speech Concerns. According to local news outlet KENS 5 San Antonio:

The original idea was met with much protest because people felt it went against their First Amendment rights, now the councilman is taking what he calls a proactive approach.

"I decided to look if I can still maintain the strength of the ordinance and provide some [peace] of mind to people who are concerned about the section, then we'll take the section out," Bernal said.

Bernal made the revisions to the original ordinance, and said it tightens language to be all-inclusive, in a document that hasn't been revised in decades. He also said the intention was to protect the citizens of this community, not discriminate against anyone for religion, sexual orientation, and gender identity. [KENS5.com, 7/26/13]

Myth: Religious Businesses, Organizations Will Be Shut Down

Pastor Charles Flowers: Under The Ordinance, Christians And Conservatives "Can't Operate Their Businesses ... Anymore." Flowers stated on The Janet Mefferd Show:

Both churches, nonprofit organizations, individuals, businesses that are not necessarily a part of the faith community but have adhered to a traditional moral value set in relationship to this subject of homosexuality and transgender identity - they can't operate their businesses that way anymore.

Janet, this is 2013. And we're talking about the encroachment of a government into the practice of peoples' lives seeking even to define how religion operates and how they operate as individuals or businessmen and women. This is unheard of. [The Janet Mefferd Show7/30/13]

Fox News Radio's Todd Starnes:"Businesses Run By People Of Faith Would Be Subject To Criminal Penalties" Due To Ordinance. According to an article Starnes wrote for Fox News Radio:

Churches across San Antonio are expressing outrage over a proposed anti-discrimination law that would protect LGBT workers but would not provide a religious exemption and would effectively prohibit anyone who opposes homosexuality from holding public office or getting a city contract.

[...]

[Critics] also believe the ordinance would also ban the city from doing business with anyone who fails to espouse politically correct views and businesses run by people of faith would be subject to criminal penalties if they refused to provide services that conflict with their religious beliefs related to homosexuality.[Fox News Radio, 7/30/13]

Fact: Ordinance Includes Exemptions For Religious Businesses And Institutions

Religious Organizations Are Exempt From The Ordinance's Employment Discrimination Provisions. According to Section 2-550 (b) of the ordinance:

Sec. 2-550. - Non-Discrimination Policy.

[...]

(b)     A religious corporation, association, society or educational institution or an educational organization operated, supervised or controlled in whole or in substantial part by a religious corporation, association or society does not violate the non-discrimination policy by limiting employment or giving a preference in employment to members of the same religion. [Proposed Ordinance, via OneNewsNow, 7/23/13]

Religious Organizations Are Exempt From The Ordinance's Public Accommodation Discrimination Provisions. According to Section 2-594 of the ordinance:

Sec. 2-594. -Exemptions.

This Division shall not, however, apply to any hotel, motel, restaurant or theater operated by a bona fide private club not conducted for the purpose of evading this Division when the accommodations, advantages, facilities and services are restricted to the members of such club and their guests; nor to any bona fide social, fraternal, educational, civic, political or religious organization, when the profits of such accommodations, advantages, facilities and services, above reasonable and necessary expenses, are solely for the benefit of such organization. [Proposed Ordinance, via OneNewsNow, 7/23/13]

Religious Organizations Are Exempt From The Ordinance's Housing Discrimination Provisions.  According to Section 2-635 of the ordinance:

Sec. 2-635. - Religious Organizations and Private Clubs Exempted

(a) This Division does not prohibit a religious organization, association, or society, or a nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, from:

(1) Limiting the sale, rental, or occupy dwellings that it owns or operates for other than a commercial purpose to persons of the same religion; or

(2) Giving preference for such dwellings to persons of the same religion, unless membership in the religion is restricted because of race, color or national origin. [Proposed Ordinance, via OneNewsNow, 7/23/13]