SAN ANTONIO—A new San Antonio nondiscrimination ordinance likely will prevent the Southern Baptist Convention and the Southern Baptists of Texas Convention from holding annual meetings in the city’s convention facilities because the law requires all city contracts to include a statement that the contracting party will not discriminate based on sexual orientation or gender identity, said an attorney who represents both conventions.
“The likelihood is that if there is any ambiguity in the minds of the conventions as to what it is they’re agreeing to, that city will simply be bypassed. Or at least the city-owned facilities will be bypassed,” James Guenther, general counsel for the SBC and SBTC, told the TEXAN.
The ordinance, passed Sept. 5 by an 8-3 vote of the City Council, also allows city officials to be removed from office if they discriminate on the basis of sexual orientation or gender identity and forbids businesses in the city, with few exceptions, from discriminating based on their opposition to homosexuality. An earlier draft of the ordinance that would have made it illegal to demonstrate “bias by word or deed” was removed in the final version in favor of the term “discrimination.”
Religious organizations, according to the text of the law, would be exempt from the law’s hiring requirements.
The SBC last met in San Antonio in 2007 in a city-owned convention hall. The SBTC met in San Antonio last year, but at Castle Hills First Baptist Church.
It’s not clear how the new ordinance would apply to a convention leasing the city’s facilities, Guenther said. One possible interpretation is that no official statement of the convention would be allowed to denounce homosexuality. Another interpretation is that the convention would only be barred from denying seating to homosexual messengers.
Either interpretation is problematic, Guenther said. Neither SBC nor SBTC governing documents specifically exclude homosexuals from being messengers, he said, but they forbid churches that affirm homosexuality from sending messengers.
The SBTC constitution, article IV, states, “The SBTC will not consider for affiliation or continued affiliation any church that has taken action affirming, approving, or endorsing the practice of homosexuality. Such actions include but are not limited to the licensure or ordination of homosexuals, marriage or blessing of homosexual relationships, and endorsing homosexuality as an acceptable lifestyle.” The document only allows affiliated churches to send messengers to annual meetings.
The SBC constitution, article III, states, “The Convention shall consist of messengers who are members of missionary Baptist churches cooperating with the Convention.” It goes on to specify, “Among churches not in cooperation with the Convention are churches which act to affirm, approve, or endorse homosexual behavior.”
Whether either convention “discriminates” against homosexuals is a “nuanced” and complicated issue, Guenther said.
“If someone walks in off the street and is not a messenger but is known to be homosexual somehow, he’s still welcome (at an annual meeting),” he said. “Obviously if he misconducts himself, then he’s not welcome. But we do not, to my knowledge, bar the presence of persons who are homosexual per se in the meeting.”
But “if a church sent a person as a messenger and that person was known to be one who himself was homosexual or one who championed homosexual causes, that would raise the question of whether the church is in friendly cooperation. And if the church is deemed to be not in friendly cooperation, as evidenced by the church’s selection of that messenger, then the convention could act to deny the seating of that messenger,” Guenther said.
Other cities have nondiscrimination ordinances, but neither the SBC nor SBTC has been forced to sign a contract for an annual meeting promising not to discriminate on the basis of sexual orientation, Guenther said, adding that the San Antonio ordinance is particularly problematic.
“When one reads the San Antonio ordinance, I think one would conclude that the convention commission, or whoever operates the convention center that a convention wants to lease, would have no authority to execute a contract unless it contained this provision,” he said.
The SBC and SBTC are “very sensitive” to the development of nondiscrimination ordinances and will “take care on the first occasion” that a contract is presented barring discrimination on the basis of sexual orientation, Guenther said.
“We have discussed this development with both conventions, and those officers who make convention arrangements are sensitive to them,” he said. “We’ll simply have to wait and see how these ordinances get interpreted.”
Multiple groups have announced plans to file legal challenges to the ordinance, and efforts are underway to recall Councilman Diego Bernal, the measure’s author, and Mayor Julian Castro, who supported it. Elected officials, including U.S. Sen. Ted Cruz, R-Texas, and Texas Attorney General Greg Abbott, have raised concerns as well.
Under the law, wedding-related businesses, such as photography studios and caterers, could be targeted for legal action if they refuse to participate in homosexual commitment ceremonies, for example, said Jonathan Saenz, an attorney with the conservative Texas Values. Printing businesses could also be cited if they refuse to print literature or articles of clothing for gay pride events.
“Primarily, you’re going to see small businesses targeted,” Saenz said. “They don’t have the type of support or financial ability to withstand any type of attack or challenge on these types of issues.”
Businesses that deal with the city government must include in their city contracts a statement that they do not discriminate based on sexual orientation or gender identity. Violation of the law by businesses or property owners is a Class C misdemeanor.
“People that want to advocate [the homosexual] lifestyle and silence the other side from opposing it” plan to use the ordinance “as a weapon to make people be quiet and force them to either forego their religious beliefs and essentially support the homosexual lifestyle or go out of business,” Saenz told the TEXAN.
Legal challenges could be triggered if the ordinance is enforced against a business or city official. A challenge could also precede any alleged violations if a lawsuit claims the law violates free speech and freedom of religion, Saenz said.
City officials received 11,000 opposition emails in the weeks leading up to the vote, and five City Council meetings on the ordinance drew hundreds of residents who expressed their opposition. In an Aug. 28 meeting, city officials appeared confused about the measure’s legal consequences, as the city attorney struggled to answer questions and expressed concerns that he was embarrassing himself.
In addition to recall efforts, Saenz said the measure’s supporters could face challenges in the next election and may have strained their credibility with San Antonio residents.
The ordinance prohibits any “appointed official or member of a board or commission” from engaging “in discrimination 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 disability, while acting in their official capacity, while in such public position.” The council voted separately on adding “veteran status,” with that language gaining approval 9-2.
“Violation of this standard shall be considered malfeasance in office” and the City Council is “authorized to take action as provided by law to remove the offending person from office.”
Last-minute amendments clarified that the measure does not require businesses to allow transgendered persons to use restrooms or locker rooms intended for people of the opposite sex—a change that angered some of the ordinance’s supporters.
Several previous amendments attempted to calm the swell of opposition. Thanks to one amendment, a “religious corporation, association, society or educational institution” may limit employment to members of the same religion. Another amendment added the qualifier, “Nothing herein shall be construed as requiring any person or organization to support or advocate any particular lifestyle or religious view or advance any particular message or idea.”