El Paso’s three-year feud over gay rights.
It started with good intentions. Before the hate mail began rolling in from across the country, before the pastor had his church vans vandalized and manure dumped in his parking spot, before the mayor penned a protest song and before El Paso became the latest battleground over gay rights, before all of that, there was a simple plea for acceptance.
In 2009, El Paso City Council members Susie Byrd, Steve Ortega and Beto O’Rourke visited with teenagers at a community center. A teen in the audience stood up and told the elected officials, “I’m gay and in love with my boyfriend, but I don’t feel like I’m welcome in El Paso.”
The teen’s comment stuck with the city leaders. “Unlike other large cities, El Paso hadn’t really had a big discourse about gay rights and gay issues,” Byrd says. “Maybe it’s because of the predominant Catholic demographic in our city, there is a discomfort about the political language around gay rights and gay issues.”
The three elected officials felt it was time to send a positive message to El Paso’s gay community. Ortega and O’Rourke went back to city hall and talked with staff about how the city could be more inclusive. They came up with a proposal to extend city health benefits to domestic partners. Shortly afterward, O’Rourke formally made the proposal in a budget meeting.
They initially estimated the change would affect about 45 people. But in the end, the proposal provided health coverage to only 19 domestic partners of city employees. Just two of them were gay. It costs the city about $34,000 annually to extend the benefits.
“The pragmatic effect was not very significant because it was only two people,” Ortega says. “But the symbolic effect was huge because it says that we are an inclusive community.”
Not all of El Paso agreed. Retiree Barney Field heard about the new provision and alerted pastors to protest it. Field, 71, is the founder of a local Christian group called El Paso for Jesus. He calls himself a “city reacher” who prays for El Paso’s salvation. The group, started in 2005, prays 24-7, in shifts, for the city’s salvation. Field’s shift is from 3 a.m. to 4 a.m. “I felt like this was something the majority of El Pasoans and God would not agree with,” he says. “It was not proper for the city to reward sexual immorality.”
At the next City Council meeting, Field and at least 30 pastors showed up to testify against the city’s domestic partner initiative, including evangelical pastor Tom Brown. “He’s a pretty persuasive guy and he’s not shy—let’s put it that way,” Field says of Brown. By the end of the meeting, he says, the pastors felt they were being ignored. “I’d quote the Bible to the City Council and it was like you were speaking a foreign language. They didn’t even understand what I was talking about.”
Brown and the other pastors came back to the next City Council meeting and the next, but city officials held firm to their new policy. So Field and Brown decided to escalate their efforts. They formed a political action committee, called El Pasoans for Traditional Family Values, to fight back.
The 2009 clash over domestic partner benefits would spiral into a long, bitter court battle. There was an attempt to recall El Paso Mayor John Cook and council members Byrd and Ortega (O’Rourke had already left office), as well as a community-wide debate over extending equal rights to gays and lesbians. The efforts of Brown and other churchgoers to recall city leaders would spark a district attorney’s investigation and potentially an indictment for alleged violations of Texas election law and would lead to a wider legal dispute about how corporate money can be spent in Texas elections. The case could expand the U.S. Supreme Court’s Citizens United v. Federal Election Commission ruling.
El Paso has become the latest battleground in the nation’s culture war, with conservative Christians pitted against city leaders who say equal rights for gays and lesbians are a 21st century civil rights battle.
Even former NBA star and reformed homophobe Tim Hardaway, a former guard on the University of Texas at El Paso basketball team, weighed in last year, holding a press conference in El Paso to support citizens backing health benefits for domestic partners. “They put on their pants just like we put on our pants,” he told the media. “It’s time for El Paso to catch up with the times.”
In El Paso’s gay community, the protracted, sometimes ugly debate caught many off guard, says 25-year-old Matt Sutton, who decided to become a gay rights activist because of the feud. “It wasn’t just about city employees,” he says. “I felt like it was opening the door to a lot of other things that could strip us of our rights.”
“[Pastors] used language like ‘the promotion of traditional family values’ in their advocacy, but their agenda was very clear,” says councilman Ortega. “Here was a group of local bigots who didn’t like gays, and it was their opportunity to act out against gays.”
At his Word of Life church on El Paso’s east side, Pastor Tom Brown says he’s been unfairly painted as a “hater.” His Tom Brown Ministries was recently labeled a “hate group” by the Southern Poverty Law Center. Brown is 49 with a trim beard and an intense yet friendly demeanor. He grew up in El Paso. His father owned a bar called the Night Gallery. His mother started taking him to church after she “was saved by Jesus Christ,” he says. Eventually, he also found the Lord. In person, in his church office, Brown speaks in the same booming voice he uses on stage at his 18,000-square-foot church located near a busy intersection amid southwestern-style tract homes. His wife Sonia is also a pastor at the church. The Tom Brown Ministries website features photos of Brown hugging his wife, whom he calls his “soul mate,” and the couple’s three adult children.
Brown says he’s suffered for his convictions. Recently, a man cussed him out at a movie theater. Some congregants have left, he admits, because of his lobbying at city hall against what he’s referred to in the past as the city’s “radical gay agenda.”
“I know for a fact that some people have left the church because they didn’t like what I was doing,” he says, “And they didn’t think that a pastor should follow his conscience.”
Despite the departures, Brown says he gains more congregants every year. His church is majority Hispanic with a good number of African-American and Anglo members. In April, he’ll break ground on an expansion. “We are evangelical but very orthodox,” he says. Brown frequently travels to Malta and the Czech Republic to preach, and has written 12 books, including one on exorcisms called Devils, Demons and Spiritual Warfare. Another, titled Homosexuality: Its Cause and Cure, sells for $20 on his website. In a long essay on the site, he argues that homosexuality is a “psychological disorder,” brought on in early childhood by trauma or sexual abuse.
Brown says he holds nothing against gay people; he just thinks homosexuality is “immoral.” He believes there’s a growing movement in the United States to promote what he calls a “sinful practice” through issues such as same-sex marriage and health benefits for domestic partners. “What they want is for western civilization to change thousands of years of understanding of marriage, and that’s marriage between a man and a woman,” Brown says. “They think it’s a civil rights issue but it’s not.”
In Brown’s estimation, it was city leaders’ refusal to listen to Brown and his fellow pastors that led to the ongoing feud and the formation of the El Pasoans for Traditional Family Values political action committee. “I told the City Council, ‘this will bring division to our community and it’s not worth it. If you respect the Texas Constitution, which defines marriage as one man and one woman, then don’t push this.’ But they didn’t listen,” he says.
So Brown, Field and other members of El Pasoans for Traditional Family Values held a petition drive to put a referendum on the November 2010 ballot to overturn the city’s domestic partnership benefits policy. They won. Fifty-five percent of voters approved the measure, which read, “The City of El Paso endorses traditional family values by making health benefits available only to city employees and their legal spouse and dependent children.” Brown and his supporters were triumphant. City leaders and those who supported domestic partnership benefits were stunned.
After the November 2010 election, Pastor Brown had just a few weeks to savor his triumph before a lawsuit was filed by El Paso’s police officers union. The new ordinance had an unintended consequence. Its overly broad wording meant that not only would domestic partners not receive benefits, but neither could retired city workers. That meant 198 people would lose their benefits, including retired fire fighters and police officers. The retirees were no longer technically “city employees.”
At city hall, Mayor John Cook was faced with a dilemma. A devout Catholic who likes to start conversations with “I’m blessed. How are you?” Cook would have to allow the ordinance to go into effect or find another solution fast. Tall and jovial, Cook emanates the folksiness of a small-town preacher, but with the underlying pragmatism of an elected official in charge of a major metropolitan city. “I could have closed my eyes and just said, ‘Well, it’s not my fault, there’s just some mean-spirited people out there,’ and let it go into effect,” he says. “Or I could try to get into the minds of voters and try to determine what they meant. Maybe they just believed employees, legal spouses and their children and screw everybody else—they don’t deserve health benefits.”
But that’s not what he decided. In the end, Cook chose to “put it back the way it was,” he says. The ordinance to restore benefits to domestic partners and retirees went back before City Council, but this time it was a 4-4 tie. Cook broke the impasse with his vote in favor of providing benefits to domestic partners of 19 city employees, and restoring benefits for the others who would have been affected by the new ordinance. “At first I was disappointed with the City Council, but now I’m glad that it got to a 4-4 vote so I could voice my opinion. I think this was an issue that it was important for the mayor to stand up for, and if people got upset it was their right to recall me from office.”
Which is exactly what the pastors had in mind. After the City Council vote, Brown and his supporters were livid. They launched a petition effort to force Mayor Cook, Susie Byrd and Steve Ortega into a recall election. (City Council member Beto O’Rourke had already left office and so was not subject to the recall efforts. He’s now running for U.S. Congress.) Barney Field, who considered himself a close friend of Cook’s, ended his weekly Bible study meetings with the mayor after the tie-breaking vote. “We had read the entire New Testament twice through and were halfway through the Old Testament,” he says. “His vote was a slap in the face.”
Field, however, didn’t have the heart to mount a recall campaign against his old friend, so he resigned from El Pasoans for Traditional Family Values. Brown had no such qualms. He sent emails to church members and posted an open letter on the Tom Brown Ministries website asking people to circulate recall petitions. Eventually, Brown and volunteers gathered twice the number of signatures needed to force a recall election. It was scheduled for April 2012.
Mayor Cook was incensed. Throughout the recall campaign, he says, Brown was coordinating it from his church, technically a corporation, in violation of Texas election law. El Pasoans for Traditional Family Values, which Brown chaired, had also failed to file paperwork with the state designating it as a PAC for the recall election, as required by Texas law. “I respect people’s right to hold a recall election, but not if they’re breaking the election law,” Cook says. The mayor filed suit against Brown and his PAC.
Then things really got ugly. The long-simmering local dispute drew the attention of national groups from both ends of the political spectrum. Conservative groups flocked to Brown’s aid, arguing that churches have the right to free speech. Joel Oster, of the Arizona-based Alliance Defense Fund, started by televangelists in the 1990s, became Brown’s lead attorney, charging that Texas election law is unconstitutional. “This was an act of free speech and a horrible affront to the Constitution,” Oster told Christian radio host Janet Mefferd during a recent interview. “Are we in Communist China or the United States, where we have freedom of speech?”
Cook’s lawsuit to stop the recall election went before County Court Judge Javier Alvarez in November 2011. Alvarez issued a convoluted ruling that Brown and others had violated the state’s election law, yet the judge refused to stop the recall election, stating that he “didn’t want to thwart the will of the people,” according to the El Paso Times. Cook appealed to Texas’ 8th Court of Appeals and won. In February 2012, the appeals court delivered a stinging rebuke to Judge Alvarez. “It is essential to the independence of the judiciary and the public confidence in the judicial process that a judge be faithful to the law and not be swayed by public clamor or fear of criticism,” the judges’ opinion read.
Meanwhile, Brown was sinking deeper into legal troubles. A national nonprofit called Americans United for the Separation of Church and State reported Brown’s church to the Internal Revenue Service for “illegal partisan politicking.” The group also made a complaint to Texas’ attorney general. That sparked a criminal investigation by El Paso’s district attorney and a possible indictment of Brown and others who organized the recall for violating state election law. The investigation is ongoing.
Brown is not without powerful allies, many of whom are affiliated with the national Republican Party. Recently, Oster assembled a team of legal heavy hitters in Brown’s defense, and they filed an expedited petition before the Texas Supreme Court to reverse the court of appeals’ decision in Cook’s favor. On Brown’s pro bono legal team is the Liberty Institute, which defended Sarah Palin during her Alaska ethics investigation, as well as former Texas Supreme Court Justice Raul Gonzalez, the James Madison Center for Free Speech (founded by Republican Senate Minority Leader Mitch McConnell), and attorney James Bopp Jr.
In the Brown petition now before the Texas Supreme Court, this legal team has launched an assault on Texas’ prohibition against corporate contributions in recall elections. For more than 100 years, Texas law has forbidden corporations from contributing directly to candidates. It was this prohibition that led to the 2005 indictment of then-House Majority Leader Tom DeLay. “We would like to strike it down as unconstitutional because it creates all kinds of havoc and uncertainty and fear,” Oster told Mefferd during his recent radio interview.
Bopp Jr. helped lead the team that won Citizens United vs. Federal Election Commission, which gave First Amendment free speech rights to corporations. This means labor unions and corporations can spend unlimited funds on elections as long as they spend it through independent organizations, without giving money directly to candidates. During the last legislative session, state lawmakers amended the Texas Election Code to comply with Citizens United. Corporations now can spend money on elections through independent PACs, but still can’t contribute directly to candidates. Brown’s legal team hopes to change that. They argue in their petition that Texas can’t require corporations to form political committees because it is “burdensome” and “onerous.” In that sense, they hope to use Brown’s petition as a vehicle to expand Citizens United to allow direct corporate contributions to state campaigns.
Mark Walker, Cook’s attorney, thinks Brown’s case has no solid legal footing. “Apparently, they want churches to be able to say or do anything without disclosure statements,” says Walker. “Their efforts to expand Citizens United are ill advised. This [case] is not about independent expenditures,” he says. “El Pasoans for Traditional Family Values did not fill out the proper paperwork to legally raise funds and finance and organize a recall campaign. And as a corporate entity, the church [Word of Life] didn’t act alone but with other people.”
In late March 2012, Brown suffered another setback. The Texas Supreme Court declined to reinstate the recall election. Mayor Cook and council members Byrd and Ortega leave office in May 2013. El Paso’s city charter stipulates that elected officials can’t be recalled within 12 months of the end of their term. It would be impossible to mount another recall effort at this point, Walker says.
Brown’s team is not admitting defeat, however. The Texas Supreme Court still hasn’t ruled on whether the Texas election law is unconstitutional, says Oster, the lead attorney. “The recall election is still in play,” he says. “There could be a special election, especially if the Supreme Court rules that stopping the recall election was in violation of the constitution.”
If the Texas Supreme Court doesn’t rule in his favor, Oster says, he wouldn’t hesitate to take the case before the U.S. Supreme Court.
The three-year battle seems to have steeled both sides. The pastors, including Brown, have formed an El Paso chapter of the U.S. Pastor Council to spur civic engagement by churches, and encourage church members to vote. At least 37 churches have already joined. “What’s going on in El Paso is a symbol of what’s taking place all around the nation—a battle between people of faith and the government,” Brown says.
Ironically, his evangelical community’s bid to curb the city’s “radical gay agenda” has pushed El Paso’s gay community to become more organized and politically involved, says Matt Sutton, who formed a local chapter of the Texas Stonewall Democrats last year at the height of the dispute. “I think we’re now seeing a renaissance of LGBT activism,” he says. “Tom Brown did us a favor and brought the issue up, and the gay community saw that their rights were in jeopardy, and we had to fight back.”
At City Hall, Mayor Cook and council members Susie Byrd and Steve Ortega say they have no regrets about extending benefits to domestic partners. They only wish it hadn’t been so divisive. Cook has racked up more than $280,000 in legal fees, which may wipe out his retirement, he says. Despite the loss of a friend, the hate mail, and the long and costly battle, Cook says he would do it again if he had to. Ultimately, he says, it’s about sending a message to the rest of the world about El Paso, which has been on the forefront of civil rights issues. “We were the first city in the Deep South to pass a non-discrimination ordinance and provide equal access to public facilities regardless of race,” he says. “Why would people in this day and age think that gay people don’t deserve the same equal protection as anyone else?”