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What SCOTUS’s Masterpiece Cakeshop Decision Means for Texas

The U.S. Supreme Court ruled in favor of a Christian baker in Colorado who refused to bake a wedding cake for a gay couple. The outcome doesn’t have direct legal bearing on Texas — but it does have implications for religious refusal laws in the state.

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Jack Phillips decorates a cake in his Masterpiece Cakeshop in Lakewood, Colorado on September 21, 2017. Photo credit: REUTERS / Rick Wilking

This article originally appeared in The Texas Tribune

Last year, a dispute over a Colorado wedding cake made it all the way to the U.S. Supreme Court. This week, the reverberations of the high court’s ruling made it all the way to Texas. 

After the high court ruled Monday in favor of a Christian baker in Colorado who refused to make a wedding cake for a gay couple, conservatives praised the ruling as a vindication of religious liberty and free speech. Meanwhile, LGBT advocates focused on language in the decision that suggests future cases could be decided differently. 

At the center of the case was the question of “religious refusals” — whether, and when, a “sincerely held religious belief” justifies denying certain people certain services or privileges. The baker, Jack Phillips, sought what LGBT advocates have characterized as a “constitutional right to discriminate,” saying that he should not be forced to “use the talents that I have to create an artistic expression that violates [my] faith.” 

In a 7-2 holding Monday, the high court declined to identify that right, ruling instead on narrower legal grounds specific to Phillips’ case. Writing for the majority, Justice Anthony Kennedy said Phillips had been unfairly treated by the Colorado Civil Rights Commission at an earlier stage of the lawsuit. Other religious refusal cases, Kennedy wrote, “must await further elaboration in the courts.” 

The Supreme Court also held that “it is a general rule that [religious and philosophical objections] do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Lawyers for the baker had argued that the baker’s work was protected as an expression of his art. 

This case doesn’t have direct bearing on similar statewide issues in Texas. But here are five Texas takeaways: 

Both sides are claiming some victories from the ruling. That includes several prominent Texas Republicans. U.S. Sen. Ted Cruz said the court “took a stand for religious liberty against the unconstitutional demands of an oppressive bureaucracy.” Texas Attorney General Ken Paxton said “this is a landmark victory for our first liberties of religious freedom and freedom of speech.” Both had led more than a dozen federal lawmakers and attorneys general, respectively, in friend-of-the-court briefs on behalf of the baker. 

Still, experts and LGBT advocates pointed out that the court left open the larger question of religious refusals and held out hope that future cases on the issue would come out in their favor. 

“It’s a victory for equality that the court did not create this constitutional right to discriminate,” said Rebecca Robertson, chief program officer for Equality Texas. “Justice Kennedy said in no uncertain terms that the underlying question has yet to be resolved. And so I think we are going to see another case like this at the Supreme Court.” 

The legal basis for religious refusals is very different in Texas and Colorado. The Colorado couple sued the baker under the state’s public accommodation law, a statewide anti-discrimination statute. But Texas is one of just five states that has no such law — meaning a couple in a similar situation here would not have had a state law to protect them. 

But some Texas cities have anti-discrimination ordinances along the same lines. Cities like Austin, Dallas and San Antonio have some explicit protections in place for LGBT residents — and those were broadly upheld in Monday’s ruling, experts said. 

“One implication of this decision is for the general validity of those acts,” said Lawrence Sager, a constitutional theorist at the University of Texas at Austin School of Law. “The principle says that there is nothing approaching a general right of religious believers to disobey those municipal laws.” 

When it comes to those local ordinances, though, LGBT individuals’ “remedy is fairly limited,” Robertson said. Those local rules are important, she said, but do not carry the force that a state law would. 

LGBT advocates say this ruling spotlights the need for a statewide anti-discrimination law in Texas. The decision, advocates say, made it clear that public accommodation laws offer important protections — and made it clear that Texas needs to enact one. 

“Texas does not have — and should have — comprehensive statewide protections,” said Jennifer Pizer, a Lambda Legal attorney who worked on the organization’s friend-of-the-court brief. “This decision underscores why those laws are important and why the Texas Legislature should pass those laws.” 

Certain measures — like a bill by state Rep. Eric Johnson, D-Dallas, that would have explicitly protected LGBTQ employees from workplace discrimination — come up every session, but rarely gain much traction

U.S. Rep. Beto O’Rourke, the El Paso Democrat challenging Cruz for his U.S. Senate seat this year, also said the Masterpiece Cakeshop decision makes clear the need for a federal anti-discrimination law that explicitly protects LGBT people. 

“I don’t think you can be too gay to buy a cake,” the congressman wrote on Twitter. “Let’s end this discrimination. Let’s pass the Equality Act. Let’s ensure equal justice under law for LGBTQ Americans.” 

Advocates also worry that this ruling could bolster Texas lawmakers who champion “religious refusal” laws to file more in 2019. The Texas Legislature considered a slew of religious refusal laws in 2017 — by an ACLU count, lawmakers weighed 17 bills that would have would have discriminated against LGBT individuals in the name of religious freedom. Perhaps the most noteworthy of those bills was House Bill 3859, a measure that allows religious welfare providers to deny adoptions and other services to LGBT people. That law prompted California to block state-funded travel to Texas. 

While the court didn’t issue a blanket protection for religious refusals, Monday’s decision will only empower lawmakers who favor such measures to file more in the future, Robertson said. That would follow a pattern she said emerged after the high court ruled in the landmark Obergefell case that same-sex couples have the right to marry. After that decision, she said, there was a backlash of discriminatory measures from Texas lawmakers. 

“People who advance those arguments are going to take this case as support and justification [for religious refusals],” Robertson said. “When there is a really clear [pro-LGBT] ruling from the Supreme Court, the Texas Legislature comes back and tries to think of ways to legislate around that ruling, or legislate in a way that ignores the ruling.” 

Disclosure: Rebecca Roberston, Equality Texas and the University of Texas at Austin have been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. A complete list of Tribune donors and sponsors can be viewed here.

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.

Emma Platoff is a breaking news and civil courts reporter at The Texas Tribune, where she started as a fellow in 2017. She is the first to fill either role. A recent graduate of Yale University, Emma is the former managing editor of the Yale Daily News and a former intern at The Philadelphia Inquirer and the Hartford Courant.

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Texas

Amazon Picks Crystal City and New York for HQ2, Snubbing Texas

The long-awaited decision comes more than a year after Amazon announced the public bidding war in September 2017.

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Illustration by Todd Wiseman / Texas Tribune

This article originally appeared in The Texas Tribune

In the end, there were two, and neither was in Texas.

Amazon announced Tuesday morning that it will build its second and third headquarters in New York and Crystal City, Virginia — a blow to Texas, a state fiercely proud of its business-friendly reputation that boasted two cities on the tech giant’s short list of 20 potential picks.

Since September 2017, when the tech giant announced it was searching for a home for its “HQ2” — a multi-billion dollar capital investment expected to create as many as 50,000 new jobs — Texas pledged to compete aggressively, and some cities went “all-in” on the wooing efforts. Austin and Dallas made the January 2018 cut for Amazon’s shortlist, a trim that eliminated some 200 other bids, including one each from Houston and tiny Milam County in Central Texas.

Ultimately, the company opted to split that prize into two, with 25,000 jobs each intended for New York’s Long Island City and Virginia’s Crystal City. Nashville will also become a home to an Amazon “operations center of excellence,” with more than 5,000 jobs, Amazon announced Tuesday.

Throughout the 14-month bidding war, Texas officials had projected confidence about the state’s ability to attract top businesses; in March, the state won a Site Selection magazine award for attracting investments, its sixth consecutive victory. In television interviews, Gov. Greg Abbott boasted about the state’s “built-in” advantages for attracting big tech.

Both Austin and Dallas were considered top contenders for HQ2, winning top billing in a host of rankings. Austin, a burgeoning tech hub in its own right, boasts the state’s flagship university campus and a relaxed culture attractive to young professionals — but its relatively small airport, poor transit system and rising rents may have hurt its chances. Dallas, on the other hand, is a bigger city with a world-class airport. Experts expected it could more easily absorb the enormous influx of new workers — but some speculated that it lacked a “cool factor” Amazon sought to attract top talent.

And experts had cautioned since the beginning of the bidding process that Texas’ conservative social policies might hurt its chances with the young, largely liberal tech company, whose owner, Jeff Bezos, has championed gay rights. A group of activists launched a “No Gay No Way” campaign, calling on the tech giant to reject any states with policies unfriendly to the LGBTQ community.

After the news broke Tuesday morning, Austin’s chamber of commerce said in a statement that “the fundamentals that made Austin a top 20 finalist and have helped our city be a leader in job generation — our incredible talent and lifestyle—haven’t changed.”

“Make no mistake, this has been a ‘win’ for our region regardless of the outcome,” said Dale Petroskey, CEO and President of the Dallas Regional Chamber. “Our business community grows and expands by the day, and our momentum as a destination of choice has only increased as a result of being a finalist for HQ2.”

Amazon said in its announcement that it may receive more than $2 billion in tax incentives from the two locations. Dallas offered the company up to $600 million in incentives, not including the state’s contribution, according to a summary of the bid the city released Tuesday. Austin has not disclosed its offer.

Abbott told Fox News earlier this year that Texas would “be stepping up and providing some incentives,” though it would not “give away the farm.”

Those state-level incentives have not been disclosed publicly, but likely fell in the nine-figure range. Documents released as part of Houston’s failed bid showed the city had offered $268 million in incentives, including the state’s contribution. Arlington, which released its bid after being eliminated from contention, had offered $921 million, a figure that did not appear to include a contribution from the state.

Disclosure: The Austin Chamber of Commerce has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. A complete list of Tribune donors and sponsors can be viewed here.

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.

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Elections 2018

In Texas, “Rainbow Wave” Outpaces the Blue One

Fourteen of 35 LGBTQ candidates won their races Tuesday night, and activists say the 2018 election will carve a path for a future “rainbow wave” in Texas.

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This article originally appeared in The Texas Tribune

Fourteen of the 35 gay, bisexual and transgender candidates who ran for office in Texas during the midterms claimed victory Tuesday night — a 40 percent success rate in deep-red Texas — and national and state activists say they’re confident this election cycle carved a path for a future “rainbow wave” in Texas.

The historic number of Texas candidates who ran for offices from governor down to city council positions joined a record-shattering rank of more than 400 LGBTQ individuals on national midterm ballots this year.

“It shows that politics are changing and that more LGBTQ people feel comfortable to step out and run openly,” said Sean Meloy, political director at Victory Fund, a Washington D.C.-based LGBTQ group that fundraised for several Texas races.

LGBTQ candidates had plenty of fuel to inspire their campaigns and galvanize supporters, from Texas’ controversial “bathroom bill” to the Trump administration’s plans to eliminate “transgender” from legal terms.

Julie Johnson, a lesbian candidate from the Dallas-Fort Worth area, defeated Republican incumbent Matt Rinaldi of Irving; LGBTQ candidate Jessica González ran uncontested for a Dallas-area seat after defeating state Rep. Roberto Alonzo in the Democratic primary; and Erin Zwiener, a bisexual House candidate, won a Central Texas seat by defeating Republican Ken Strange. They will more than double the number of openly LGBTQ women in the Texas House of Representatives.

In Harris County, five LGBTQ judicial candidates defeated Republican incumbents Tuesday. Jason Cox, Jerry Simoneaux, Shannon Baldwin, James Kovach and Beau Miller will join the three openly gay judges in Houston. Charles Spain, a gay man, also won a seat on the 14th Court of Appeals over Republican incumbent Marc Brown.

“I think we are on a new path,” said Chuck Smith, CEO of Equality Texas, an Austin-based LGBTQ nonprofit. “[One] that demonstrates equality is a mainstream value and that extremists who seek to oppose equality are not in the mainstream.”

Perhaps the most recognizable LGBTQ candidate in Texas, Lupe Valdez, garnered national attention as the first openly gay candidate and first Latina to win a major party nomination in a Texas gubernatorial race. Valdez, a Democrat and former Dallas County sheriff, lost to Republican incumbent Gov. Greg Abbott by 13 points on Tuesday.

Valdez talked frequently about her race, gender, sexuality and socioeconomic background during the election.

“I’m Hispanic, female, lesbian, Democrat,” Valdez said in an interview with the Tribune in May. “Diversity is what made this country strong. Diversity is what will make Texas strong.”

In Texas’ 23rd Congressional District, Democrat Gina Ortiz Jones — a former Air Force intelligence officer, Iraq War veteran and lesbian candidate — fought incumbent U.S. Congressman Will Hurd to a virtual tie. Hurd remained less than a percentage point ahead of Ortiz Jones on Wednesday morning and the race is still too close to call.

Meloy, whose Victory Fund organization contributed nearly $9,000 to Ortiz Jones’ campaign and raised more than $53,000 on her behalf, said Ortiz Jones’ run represents a historic moment that gives hope to those fighting for equality.

“I think it represents not only her perseverance but that a queer woman of color who is also a veteran should not be underestimated,” Meloy said.

Below is the complete list of winning candidates (candidates with an asterisk won re-election).

  • Erin Zwiener, Texas House, District 45
  • Celia Israel, Texas House, District 50*
  • Mary González, Texas House District 75*
  • Jessica González, Texas House, District 104
  • Julie Johnson, Texas House, District 115
  • Charles Spain, 14th Court of Appeals, Place 4
  • Shannon Baldwin, Harris County Criminal Court-at-Law No. 4
  • Jerry Simoneaux, Harris County Probate Court-at-Law No. 1
  • Jason Cox, Harris County Probate Court-at-Law No. 3
  • James Kovach, Harris County Civil Court-at-Law No. 2
  • Rosie Gonzalez, Bexar County Court-at-Law No. 13
  • Tonya Parker, 116th Judicial District, Harris County*
  • Beau Miller, 190th Judicial District, Harris County
  • Sara Martinez, Dallas County Justice of the Peace, Precinct 5, Place 1*

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.

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Austin

Austin Lifts City-Wide Boil Water Notice

After seven days of boiling their water, Austin Water customers are once again allowed to consume water directly from the tap.

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The Ullrich Water Treatment Plant is one of three City of Austin plants that draws water from the Colorado River. Photo credit: Bob Daemmrich/The Texas Tribune

This article originally appeared in The Texas Tribune

After seven days of requiring residents in America’s 11th largest city to boil water and warning them of a potential shortage without reduced consumption, Austin Water officially lifted its boil water notice Sunday afternoon. The notice went into effect following heavy rain and flooding in Central Texas. The severe weather caused elevated levels of silt and debris in the water supply and treatment systems could not keep up. 

The city warned residents that “immediate action” was necessary to avoid running out of water. Customers were asked to stop outside water use, such as watering their lawns or washing cars, and were encouraged to limit indoor use as much as possible. 

On Tuesday, the Texas Commission on Environmental Quality determined that the turbidity — or the water’s cloudiness — exceeded standards. Austin Water was officially required by TCEQ regulations to issue a boil water notice, a precaution the utility had already taken. 

Mary Jo Kirisits, an engineering professor at the University of Texas at Austin, said Austin Water was right to issue a boil water notice when they did. She said the intensity and duration of recent storms contributed to increased sediment levels entering the city’s water treatment plants. 

“These plants were designed to handle a certain, reasonable range of water quality, but the quality of the water entering these plants in the last several days represents an extreme event,” said Kirisits, an expert in drinking water treatment. “This is a situation that we do not see very often, where the concentration of particles entering the plant is much higher than usual for multiple days.” 

By Thursday, Mayor Steve Adler signed a formal disaster declaration for the city, which formalizes collaboration among local and regional entities. Adler tweeted that he issued the declaration “to help with reimbursement & procurement.” 

That includes reimbursement for any costs incurred as a result of the emergency, such as overtime pay for first responders, according to the Travis County Judge’s office. Costs would be recouped from the state and federal level. The declaration will continue for one week from Oct. 25, unless it is renewed by the Austin City Council. The disaster declaration will still continue even when the boil water notice is lifted, according to Angel Flores, a spokesman for the city. 

“It is up to the federal government whether we qualify for reimbursement,” Flores said. “At this time, it is too early to tell how much we may be reimbursed.” 

In the same declaration, Adler also activated the City of Austin Emergency Operations Plan. Activation of the plan brings all necessary parties under one roof at the Combined Transportation and Emergency Communications Center on Old Manor Road. This allows city, state and federal officials to better coordinate emergency response efforts. 

During the boil water notice, the City of Austin set up water distribution centers for people unable to boil water, those who needed it for work and those with special needs. Sites included Dick Nichols Park, the Onion Creek Soccer Complex, Circuit of The Americas and Walnut Creek Park, among other locations. 

With no rain in the immediate forecast, the city’s water treatment plants are now able to process more water, according to a city statement issued Thursday. It is unclear how long it will be until the plants are running at full capacity. Normally, Austin Water can process more than 300 million gallons per day. 

Disclosure: Steve Adler and The University of Texas at Austin have been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. A complete list of Tribune donors and sponsors can be viewed here.

The Texas Tribune is a nonpartisan, nonprofit media organization that informs Texans — and engages with them – about public policy, politics, government and statewide issues.

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