City Pushes To Bring Benefits Battle To Voters Again

El Paso City Council will decide on Tuesday whether to bring the issue of domestic benefits back to the voters – this time with a non-discrimination clause in the city charter written by a city attorney.

The move is meant to trump November’s voter-approved citizens referendum that stripped away the health insurance of gay and unmarried partners of city employees. That ordinance was written and brought to the voters by local religious group, El Paso for Traditional Family Values, in response to City Council’s decision in the fall of 2009 to provide health insurance for domestic partners.

Nineteen gay and unmarried partners of city employees received the benefits in 2010 at a cost of less than $30,000 to taxpayers.

If City Council votes yes on Tuesday to the proposal, the city would present the non-discrimination clause to the voters in May. It the voters pass it, it would be added to the city charter. That’s the legally-binding document that guides the city – similar to a local constitution.

Though there are several district-wide city representative positions up for election in May, there is not a city-wide election scheduled. So if council votes to put the non-discrimination clause on the ballot, it would cost tax-payers an additional $60,000, according to a recent estimate given by Mayor John Cook in a City Council meeting. The push by El Paso for Traditional Family Values to get their ordinance on the November ballot last year cost the city $130,000.

Last week, U.S. District Court Judge Frank Montalvo granted a temporary injunction in federal court on the ordinance until he decides if it’s constitutional. That ruling is expected in mid-April.

City Rep. Susie Byrd said the non-discrimination clause is needed because it was probably confusion that caused about 11,000 people who went to the polls in November to not cast a vote on the ordinance at all. The ordinance asked voters to ‘endorse traditional family values’ by extending health benefits only to city employees, their legal spouses and dependent children. The religious group’s leaders contend that their purpose was clear from the beginning of the campaign.

“The reason City Council had put this forward was more of an equal access issue,” said City Rep. Susie Byrd, of the health benefits.

Pastor Tom Brown, one of the more vocal religious leaders who helped in the push to take away the health insurance of gay and unwed partners of city employees, sees it differently.

“It’s about marriage. Please get married and benefits can be extended,” he said.

He believes the city broke the law when they initially extended the benefits to domestic partners, because the Texas constitution and the Texas Family Code both have clauses that prohibit subdivisions of the state to provide benefits equal to marriage.

City Rep. Carl Robinson, has also said that he is skeptical of the legality of the health benefits, because of the state’s ban on gay marriage and providing equal provisions. He was the only city representative to vote against extending the health insurance to domestic partners.

Byrd said that when council decided to extend the health insurance, city staffers and elected officials looked closely into whether the issue was illegal.

“Many municipalities in Texas provide domestic benefits and they’ve never been successfully challenged as being in conflict with that provision in state law,” she said.

Byrd also disagrees with Brown about marriage being the central point.

“This isn’t about marriage, this is about equal access to benefits. We’re not declaring marriage, we’re not saying that people who have lived together for 20 years are married, that would be in conflict with state law,” Byrd said. “What we’re saying is that people who have committed themselves for 20 years, who have chosen a life that is similar to marriage would be able to protect their partner.”

Brown wants City Council to let the voter-approved ordinance stand.

“They don’t respect the voters,” he said.

Byrd said the May election is meant to clear the confusion left by the ordinance.

Because of the ordinance’s vague language, and the city attorney’s interpretation of it, hundreds of unintended people are also slated to lose their health insurance, if it’s ever enacted. The unintended, affected group, according to city officials, include retirees who qualify for health coverage through another job, grandchildren, elected official and third party contractors such as the members of the public service board.

Several municipal judges, retirees, and domestic partners have sued the city of El Paso over the ordinance in federal court, claiming it’s unconstitutional and discriminatory.

El Paso for Traditional Family Values (EPFTFV) tried to intervene in the case, fearing the city’s hired newly attorney would not properly defend the ordinance, since the City Council has been opposed to it all along. Judge Montalvo allowed EPFTFV to participate, but has not officially deemed their ‘intervention’ as valid.

EPFTFV is represented by Liberty Counsel, a nonprofit, national law organization that defends pro-life, family values, and religious freedom causes pro bono. On Monday, Brown said attorneys for Liberty Counsel had looked at the city’s non-discrimination clause and told him they’d sue the city if they implemented it. When told about Brown’s threat of a lawsuit, Byrd said, “They should go ahead and do that, every citizen has the right to be heard through the court.”

Brown believes the non-discrimination clause is unconstitutional. The preliminary draft reads as follows:

“The City shall afford equal employment and benefit opportunities to all qualified individuals in compliance with all applicable laws, without regard to their race, gender, gender identity, sexual orientation, marital status, color, religion, ethnic background or national origin, age, disability, or any other characteristic or status that is protected by federal, state, or local law.”

Brown and his attorneys are concerned that the ballot measure, which the voters will see, so far, omits the last sentence of the non-discrimination clause. It stops at the word disability and doesn’t have the following sentence: ” or any other characteristic or status that is protected by federal, state, or local law.”

“This amendment is against state law, so by adding this phrase to the amendment but not letting the voters see it, they (the city) get to say ‘Hey we know that what we’re doing is against state law, but we have a different law in El Paso and so we are permitted to provide the benefits under our own local law”, said Brown.

“I think right now, it’s very clear, they’re deceiving the people in the amendment versus the ballot”, he added.

When asked about Brown’s concern, Byrd said the last sentence has probably been preliminarily omitted to save space on the ballot, since the clause is long.

“That’s a goofy concern that can be changed easily enough.This is a proposal, and with any proposal, it can be changed,” she said.

Byrd also emphasized that any allegations by Brown that the city is trying to circumvent state or federal law are untrue.

“Nothing that the city council does or puts in our charter can be in conflict with state or federal law,” she said.

There is yet another push to bring this to the voters. Another citizens’ group, formed in reaction to EPFTFV, El Paso for Equality, are in the process of gathering the required signatures to get their non-discrimination clause in the May ballot. Their clause is similar to the city’s.