- The Washington Times - Friday, July 24, 2015

The Texas Supreme Court gave Friday the Houston city council 30 days either to repeal a civil-rights ordinance allowing opposite-sex bathroom use or place it before the voters on the November ballot.

The 12-page decision says that the council ran afoul of the city charter when it refused to act after the city secretary certified a year ago the signatures submitted by a pastor-led coalition, which had moved to force a vote on the Houston Equal Rights Ordinance (HERO).

Houston Mayor Annise Parker came under fire last year after the city moved to subpoena sermons and other documents from five pastors, known as the Houston Five, ultimately backing down and omitting sermons from the order in the face of a public outcry.

“Obviously, I am disappointed and believe the court is in error with this 11th-hour ruling in a case that had already been decided by a judge and jury of citizens,” said Ms. Parker, the city’s first openly lesbian mayor, in a Friday statement.

“Nonetheless, we will proceed with the steps necessary for City Council to consider the issue. At the same time, we are consulting with our outside counsel on any possible available legal actions,” she said.

The city has until Aug. 24 to act on the court’s order, which also suspended the equal-rights ordinance, raising the possibility of a ballot fight that could sway the outcome of the November mayor’s race. Ms. Parker is term-limited and cannot seek re-election.

The ordinance, approved by the city council in May 2014, added gender identity and sexual orientation to the city’s equal-rights law, touching off a backlash over transgender bathroom use.

Texas Gov. Greg Abbott praised the court’s decision Friday, saying that, “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.”

“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,” said the Republican governor in a statement.

Erik Stanley, senior legal counsel for the Alliance Defending Freedom, which defended the pastors, said Friday that the court “has rightly rectified this wrong.”

“Public officials should not be allowed to run roughshod over the right of the people to decide these types of issues, especially when the citizens of Houston clearly met all the qualifications for having their voice heard,” Mr. Stanley said in a statement.

“The subpoenas we successfully fought were only one element of this disgraceful abuse of power,” he said. “The scandal began when the city arbitrarily threw out the valid signatures of thousands of voters. The city did this all because it was bent on pushing through its deeply unpopular ordinance at any cost.”

The city secretary certified the signatures on July 3, 2014, saying that the petitioners had turned in 17,846 valid signatures, exceeding the required 17,269, the Houston city attorney stepped in and declared invalid more than 16,000 signatures.

The court ruled that the city attorney had no official role in the process, which by charter requires the city council to overturn the ordinance or place it on the ballot after the city secretary has certified the signatures.

“The Charter requires the City Secretary to ‘certify’ her findings, and the only findings she expressly certified were her own,” said the court decision. “The City Attorney may, no doubt, give legal advice to the City Secretary, but he cannot assume her duties.”

At that point, the council should have either repealed the ordinance or placed it on the ballot, “[y]et the City Council decided, of its own accord, not to act, disregarding the City Secretary’s certification that the petition had enough signatures,” the opinion states.

“The Charter, however, gives the City Council no discretion to reevaluate the petition; instead, it requires ‘immediate’ action by the City Council following the City Secretary’s certification,” said the court. “To give authority to the council to make the ultimate determination of sufficiency of the petition would commit the decision to a body that could not be considered impartial.”

In April, a trial court ruled in the city’s favor on the signature challenge in a case that is now pending before the Texas Court of Appeals, but that lawsuit “does not negate the city council’s duty to proceed with the political process unless that obligation is stayed by a court of competent jurisdiction,” said Friday’s ruling.

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