First Amendment Case Could End Up in High Court
BY Gail Besse
December 18-31, 2011 Issue | Posted 12/12/11 at 5:00 PM
EL PASO, Texas — A showdown over First Amendment rights of free speech and religion could make its way from this West Texas border city to the U.S. Supreme Court.
The case involves the constitutionality of a Texas election law and the extent of churches’ legal involvement in politics.
It’s the outgrowth of an earlier battle in state court in which El Paso Mayor John Cook brought charges against citizens trying to oust him and two other officials from office.
Cook’s suit alleged that signatures for the recall election should be invalidated because petitioners may have gathered some of them on church property, a violation of a state law that carries third-degree felony charges.
The Alliance Defense Fund and two local pro-bono attorneys are aiding petitioners.
“We’re defending the church’s right to be fully engaged in the culture,” said ADF senior legal counsel Joel Oster. “Christians and their institutions are not second-class citizens who are banned from the democratic process.”
Oster filed suit Nov. 17 in U.S. District Court for the Western District of Texas on behalf of some petitioners — Jesus Chapel and its pastor, H. Warren Hoyt. This suit against the city of El Paso and state Attorney General Greg Abbott seeks to have the Texas statute that Cook based his charges on — one that bans corporate contributions to recall elections — be declared unconstitutional, as it censors free speech.
It alleges that the “mayor’s actions” and interpretation of state election code violated Hoyt and his church’s First Amendment rights of free speech, free exercise of religion, freedom of association, to petition government for redress of grievances and the 14th Amendment right of equal protection under the law.
Oster argues that the Texas law is unconstitutional because it violates the principle of Citizens United v. Federal Election Commission, a 2010 landmark Supreme Court decision that limits government censorship of political activity in elections.
In any case, a recall election will be held April 14, 2012, according to Gov. Rick Perry’s office. Petitioners scored a victory in state court Nov. 28 when County Court at Law 3 Judge Javier Alvarez denied Cook’s request for a preliminary injunction to stop the election.
The case is ongoing, with a trial date set for June. ADF attorneys, who represent the parties being sued by Cook, filed a counterclaim Oct. 7 against him that is still pending, according to Oster.
The controversy began in 2009, when the El Paso City Council approved a budget item giving health-insurance coverage to unmarried domestic partners of city employees. This benefited 119 people, according to Cook.
A group of lay Catholics and Protestants who opposed the expenditure formed a political committee, El Pasoans for Traditional Family Values.
“Unfortunately, people are just kind of rolling over on the domestic-partner-benefits issue and not contesting it,” said Robert Strong, a Catholic member of the coalition from the Mission Valley section of El Paso. “We saw this as a stepping stone to the acceptance of ‘gay marriage.’”
Their coalition, led by Pastor Tom Brown of the independent evangelical congregation Word of Life Church, gathered enough signatures to put on the ballot an ordinance that would use tax dollars only for benefits to employees, their legal spouses and dependent children.
Voters in this bilingual city of 700,000 approved the ordinance by 55% in November 2010. Although the constitutionality of the voters’ ordinance was challenged, U.S. District Judge Frank Montalvo upheld it in May 2011.
But in June, the council voted 4-4 to rescind the statute; Mayor Cook broke the tie. So Brown and the coalition began a petition drive to oust the mayor and city Reps. Susie Byrd and Steve Ortega from office. (The two others who voted to overturn the ordinance did not seek re-election.)
Byrd acknowledged in a Nov. 23 phone interview that some voters supported the ordinance because they saw domestic-partner benefits as paving the way for same-sex “marriage.” However, she said she voted to rescind it because “the intent of the petitioners was to harm gay and lesbian people in our community.”
“When we got the ordinance on the ballot, it was a moral issue,” said Strong. “The second time around it morphed into an issue of democracy. Citizens’ votes were being disregarded, denied. We got about twice as many signatures on the recall petition.”
Then court action began in September. Mayor Cook personally sued Pastor Brown, Word of Life Church, Tom Brown Ministries, Jesus Chapel West and the Traditional Family Values coalition. Brown called the lawsuit against him “frivolous” in a Nov. 10 phone interview.
Cook aimed to stop the recall effort by claiming that people illegally collected signatures in churches. And Americans United for the Separation of Church and State, a Washington, D.C., group, reportedly complained of Brown’s activities to the Internal Revenue Service, according to an Oct. 2 El Paso Times article.
Local attorneys Theresa Caballero and Stewart Leeds offered their services after the mayor sued the churches. “We thought, How dare they criminalize these actions? The people have spoken,” Caballero said. “Where would the civil-rights acts be if blacks in the ’60s hadn’t congregated in their churches?”
Finally came the recent Nov. 28 county court ruling that allows the recall election to proceed.
Cook notified the Eighth District Court of Appeals that he intends to contest the lower-court ruling, The El Paso Times reported Dec. 5.
Gail Besse writes from Boston.
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