A federal judge has granted a preliminary injunction on a voter-approved ordinance meant to take away the health insurance of gay and unwed partners of El Paso City employees.
Judge Frank Montalvo on Thursday ordered the city not to implement the vaguely-worded, potentially unconstitutional initiative, until he makes a final ruling, expected to come in mid-April. Also in court, the Christian group, who came up with the ordinance, tried to intervene in the case, arguing the city would not properly defend their initiative, despite the city?s move to hire a private attorney to handle the case.
The ordinance passed in November with more than 39,000 city residents voting for it. It was put on the ballot by local religious organization, El Paso for Traditional Family Values (EPFTFV), a group whose members believe homosexuality is an abomination to God.
Its most vocal leader, Pastor Tom Brown, believes homosexuality can be cured and is caused by childhood traumas. The group petitioned to put the item on the ballot after City Council extended the health benefits to domestic partners of city employees in late 2009. El Paso?s City Council has been opposed to the voter-approved initiative all along. Most council members believe it?s discriminatory.
Since the health coverage was extended, only 16 domestic partners signed up for the benefits. The city does not differentiate between gay and straight domestic partners, said Irene Morales, the city?s Risk Manager, who handles the health coverage plan.
The ordinance drafted by EPFTFV asked voters to ?endorse traditional family values? by extending health insurance only to city employees, their spouses and dependent children.
That left out a lot of people the city already covered, including elected officials, retirees, grandchildren, and affiliated contractors ? those are agencies formed by City Council, like the Public Service Board and the Transportation Board.
EPFTFV has always maintained they only meant to target gay and unwed partners of city employees, and the hundreds of unintended people slated to lose coverage are a result of a biased city attorney who negatively interpreted their ordinance.
The city maintains it must implement the ordinance using its plain language, which excludes hundreds of people. City Rep. Steve Ortega and Mayor John Cook have said they told EPFTFV leaders to hire an attorney to draft the ordinance. The organization did not do that.
State law protects most retirees. However, those who have a second career or job in which they qualify for medical insurance, are slated to lose the health coverage they receive from the city and worked years to acquire. In court on Thursday, Morales said 75 to 80 elected officials and employees, plus an estimated 85 retirees were slated to lose health coverage if the ordinance was implemented. She said the city would stand to save about 144-thousand dollars. The city?s annual budget is about $300 million.
After the initiative passed, the city began to send out letters warning domestic partners and other unintended affected individuals of their insurance cancellation. That?s when several municipal judges, the President of the police association, a same-sex domestic partners couple, and a retiree, among others, filed suit against the city.
EPFTFV filed documents attempting to intervene in the case, but Judge Montalvo said he believed they didn?t have the merits to do that, and allowed them only to participate in the hearing as a ?friend of the court?, but not an official party involved. Representing EPFTFV is Liberty Counsel a non-profit, national law organization rooted in Christian beliefs that generally defends pro-life, family values, and religious freedom causes pro bono.
The plaintiffs argue that ?endorsing traditional family values? is a vague phrase that is not enforceable and that it is not a ?legitimate government purpose? ? a necessary requirement to take away a public employee?s health benefits. They also contend that the ordinance is unjust, and unconstitutionally vague. The attorney representing those suing the city, Jim Jopling, called three people to the stand.
Two municipal judges testified that they and their immediate family would not be able to find comparable health insurance after they lost their city benefits. Essentially, they?d have to pay more for less coverage, and with a son and wife with pre-existing conditions, they said they may not even be able to find coverage at all for those specific medical ailments.
In his opening statement, the attorney representing the city, David Pierce, said ?we don?t believe it?s an enforceable ordinance? and that they needed guidance. Pierce argued that the judge can ?reasonably infer? the voters meant to accomplish one or two things when they voted for it: advance traditional family values and/or save the city money. He said both provided ?reasonable basis for the ordinance to stand?.
The Judge asked all three lawyers to provide a legal definition of ?traditional family values? that could be found in state or federal law, statute or jurisprudence. None of them could.
Pierce said that the ordinance language itself, which mentions only a legal spouse and dependent children, identifies marriage as a traditional family value, and ultimately, the objective of the voters.
Matthew Krause, attorney for EPFTFV, told the judge that using the criteria set forth by the Texas Local Government code to decipher ambiguous laws - the meaning, in this case, of traditional family values - was clear. He said that looking at the context in which the ordinance was drafted - the battle to take away the health insurance of domestic partners and similar laws on similar subjects - it became clear what voters meant.
?You look at the other laws around Texas that are defined, marriage between one man and one woman or traditional values in a specific way, I think you could come to the conclusion that we're seeking?, Krause said in an interview.
Jopling is not satisfied with that argument. ?If they wanted this ordinance just to talk about marriage, they should have said that, but they didn't. They expanded it beyond that to traditional family values, and what that is, is legislating morality and legislating religion. Especially when you're talking about discriminating against people, and excluding people, you need to narrow your language and narrow what you're doing?, he said.
Judge Montalvo also wasn?t convinced with Krause?s or Pierce?s arguments.
?If it isn?t found in the plain language of the ordinance, it?s nowhere to be found?, he said, referring to the voters? intent. In his ruling to allow the preliminary injunction, he wrote ?Without being able to identify what traditional family values are, it is difficult to conceive how advancing such an elusive concept can possibly be a legitimate governmental interest.?
Because the city needs a ?legitimate governmental interest? to take away health benefits, and it has a contract with Aetna, the insurance provider, the judge ruled that the city would be potentially violating the Contract Clause in the U.S. constitution, if it implemented the ordinance. He also ruled that the city cannot use financial savings as a basis to terminate the contract, and the health benefits, since it?s not under dire budgetary constraints. The judge also wrote that even if ?traditional family values? could be defined, the city was not able to prove how taking the health insurance away from people who previously had it, accomplishes this goal.? Finally, the judge?s order stated that the plaintiffs would suffer irreparable harm if the injunction was not granted.
?While the ordinance passed by a majority in a popular vote, this does not determine its constitutionality?, Judge Montalvo wrote.
The benefits battle, as some have called it, has brought EPFTFV against the city council, which has been opposed to the group?s ordinance all along. EPFTFV leaders have accused some city staffers, including City Attorney Charlie McNabb of being biased and interpreting the law inappropriately. The city has repeatedly defended McNabb and his staff, citing their legal expertise. McNabb and his staff have never publicly addressed EPFTFV?s allegations, nor responded to their claims in city council meetings.
Despite having a staff of attorneys, the city hired Pierce to represent them in this case, saying he was experienced in such matters. When asked if that influenced his belief that the city was not properly defending his group?s ordinance, Tom Brown said ?I really don't have an opinion, because I don't know why they wanted to do it.?
When asked how much the city was compensating Pierce, a city attorney told ABC-7 we?d have to file a written request asking for a copy of that contract. ABC-7 is attempting to secure the document.
All three attorneys have several deadlines from now until April to further plead their case through briefings and refute the others? arguments. Judge Montalvo told them he expects to have a final ruling in mid-April.
If the judge rules for the city, there are other efforts in the works to stop the ordinance and others like it. A grassroots group who formed in opposition to the initiative has begun a petition drive to convince City Council to add a non-discrimination clause to the city charter. El Paso for Equality has to gather more than 15-hundred signatures to get city council to consider their proposal. Before their clause is heard by city council, where it can be rejected, the city clerk has to verify all the signatures are from registered voters. If council rejects their idea, they have to gather another 15-hundred signatures to take the issue to voters in May.
Their clause would forbid the city from denying health coverage, employment, and other provisions on the basis of disability, sexual orientation, age, marital status, and more. After Thursday?s ruling, a representative for El Paso for Equality, Lyda Ness, said on the phone that they felt vindicated by the federal judge?s decision.
Also already in motion: a similar attempt by the city. The City Council on Tuesday introduced a motion that would allow for a special election in May to amend the city charter. City Representatives are scheduled to discuss and vote on the issue next Tuesday. City Representative Susie Byrd has suggested a similar non-discrimination clause as El Paso for Equality?s. If City Council rejects the idea next week, then there?s still a chance voters will decide on a charter amendment in May, if El Paso for Equality can gather enough signatures in time to put it on the ballot.
This kind of special election would cost the city money. Though residents are scheduled to elect several new city representatives in May, the election is not city-wide. A charter amendment would require a city-wide election and would cost tens of thousands of dollars more. A recent estimate by the Mayor at a city council meeting was about 60-thousand dollars.
EPFTFV?s efforts to put their ordinance up for a vote in November cost the city about 130-thousand dollars.
Weeks ago, City Council also voted to take the time to draft yet another ballot measure that could come to the voters in May. This one would not be a charter amendment, but an ordinance that would cover the same issue: should the city provide health insurance for domestic partners? This time, though, the city attorneys would draft the wording, and its intent would be clear, city officials said.
Maria Garcia covers city policy and politics for ABC-7. She was the only reporter in the federal court hearing on Thursday.