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86th TX Lege

House Panel Adds Non-Discrimination Protection to Senate Bill

A now-erased provision in Senate Bill 15 explicitly said a potential new state law would not supersede local nondiscrimination ordinances. Without that language, many LGBTQ advocates fear Texans could be exposed to some discriminatory employment practices.

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State Sen. Brandon Creighton, R-Conroe, has introduced a reworked version of Senate Bill 15. Photo credit: Bob Daemmrich/Texas Tribune

This article originally appeared in The Texas Tribune

Republicans’ legislative efforts to ban cities from mandating benefits for employers’ workers took another twist late Wednesday night after a Texas House committee added protections for LGBTQ workers that the state Senate had removed from previous legislation.

Senate Bill 2486, which the House State Affairs Committee advanced Wednesday in a 10-2 vote, is part of a larger package of legislation state Sen. Brandon Creighton filed to limit the ability of cities to regulate private companies’ employment policies.

After hearing roughly eight hours of testimony Wednesday, state Rep. Dade Phelan, R-Beaumont, advanced a reworked version of the bill — adding the language explicitly protecting local nondiscrimination ordinances to the measure, which would bar cities from enacting rules on how businesses schedule their employees’ shifts.

The move comes after several legal experts and LGBTQ advocates raised alarm bells that without the language in place, the potential new state law could undermine the enforceability of local anti-discrimination ordinances. They fear it would allow businesses to selectively pick and choose which of its employees are eligible to receive benefits that go beyond monetary compensation.

Phelan later told The Texas Tribune he chose to reintroduce the nondiscrimination protection language into the bill to help ensure local ordinances — already in place in six major Texas cities — aren’t gutted should the measure become law. And he told Tribune CEO Evan Smith in a podcast interview that he’s “done talking about bashing on the gay community” and didn’t want to push legislation that could be used as a vehicle for discrimination.

“It’s completely unacceptable… This is 2019,” he said.

Many business groups told lawmakers they support the nondiscrimination language being added, when asked pointedly throughout the night by state Rep. Richard Peña Raymond, D-Laredo.

A spokeswoman for Creighton, a Conroe Republican, said early Thursday the senator was not immediately available for comment on the House’s change to his bill, which came shortly before midnight. But the senator has previously maintained that none of the bills would threaten non-discrimination provisions. Other legal opinions, including one from Texas Attorney General’s Office, have backed up Creighton’s claim.

Aside from SB 2486, the remaining three bills in Creighton’s splintered package of legislation would prevent local governments from mandating paid sick leave, regulate certain benefits practices and preempt local rules that disallow employers from asking about an applicant’s criminal history.

The House committee did not act on Creighton’s other three measures Wednesday evening. Phelan told the Tribune the panel would need more time to deliberate over the three bills, and some legal experts say the lower chamber will still need to add the nondiscrimination language to two of the senators’ remaining bills in order to ease advocacy groups’ concerns.

“The best thing they could do at this point is add the language back to all of those bills and make sure the language is the same,” said Anthony Kreis, a visiting assistant professor at Chicago-Kent College of Law.

Kreis said Senate Bill 2488, which would preempt local rules that disallow employers from asking about an applicant’s criminal history, would not have a disparate impact on LGBTQ workers.

The last-minute change by the House committee to SB 2486 that would prohibit cities from regulating how companies schedule employees could require negotiations with the Texas Senate, which will have to decide whether to keep the provision in place, or send the bill to a conference committee made up of members from both chambers.

Rebecca Marques, the Texas state director for the Human Rights Campaign, lauded the House panel’s move to add the language.

“At this point, if the language protecting non-discrimination ordinances is removed again, it would be clear that [Lt. Gov.] Dan Patrick and his cohort of extreme lawmakers are using this legislation to attack the rights of LGBTQ Texans,” she said.

Removal of the non-discrimination language from the original bill Creighton filed ensnared what was supposed to be slam-dunk legislation in a fight over ordinances protecting LGBTQ Texans.

Annie Spilman, the state director for the National Federation of Independent Business, said she was part of a coalition of business groups that met with lawmakers last year to help draft the bill which had the nondiscrimination language intact. She said passing statewide employment regulations was so important to her groups’ members that she would “totally support” adding the language back into the bills.

“This set of bills is above and beyond any sort of tax relief and tax reform. It’s very important to our members,” Spilman said. “This is not a policy discussion. This is about the role of municipal government and where these decisions need to be made.”

After both the Senate and House versions of the legislation appeared imperiled, Creighton filed the four narrower bills — all heard in Phelan’s committee Wednesday — each aimed at accomplishing a slice of the original measure’s goals.

Some LGBTQ advocates again Wednesday said they feared local nondiscrimination ordinances would be overturned in court if there wasn’t language in the bills to protect them.

“The simple fix is to add back to the language that protects local NDOs,” said Samantha Smoot, the interim executive director for Equality Texas.

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

Alex Samuels is the community reporter for The Texas Tribune. While at the Tribune, Alex helped revamp the "Texplainer" series and also spearheaded our first-ever Facebook group, "This Is Your Texas," an online community for folks who want to engage in a constructive dialogue about policy challenges facing our state. She graduated in 2017 from the University of Texas at Austin's School of Journalism. She joined the Tribune in August 2016 as a newsletters fellow and later transitioned into a reporting fellow just in time for the 85th legislative session. Prior to coming to the Tribune, Alex worked for USA Today College as both a collegiate correspondent and their first-ever breaking news correspondent. She has also worked for the Daily Dot where she covered politics, race, and social issues.

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86th TX Lege

Texas House Passes Religious Liberty Bill Amid LGBTQ Caucus’ Objections

What started as a sweeping religious refusals bill has been significantly watered down as it moves through the Texas Legislature. But LGBTQ advocates still fiercely oppose it, saying it perpetuates hateful rhetoric.

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State Rep. Julie Johnson, D-Carrollton, spoke against Senate Bill 1978 on the House floor Monday. Photo credit: Miguel Gutierrez Jr./The Texas Tribune

This article originally appeared in The Texas Tribune

Over the tearful opposition of the Legislature’s first-ever LGBTQ Caucus and several failed attempts at a procedural block, the Texas House passed a religious liberty bill Monday that LGBTQ advocates fear would license discrimination against their communities. 

When the lower chamber first considered the bill just over a week ago, the LGBTQ Caucus torpedoed it with a procedural move. This time, an attempt to do the same failed, as did emotional exhortations from the five women who make up the caucus.

After two hours of debate, Senate Bill 1978 — which prohibits government entities from punishing individuals or organizations for their “membership in, affiliation with, or contribution … to a religious organization” — passed on a nearly party-line preliminary vote, 79-62. If the House grants formal approval and the Senate agrees to a change made on the lower chamber’s floor Monday, the bill will head to the governor.

“This bill is going to pass; let’s face it,” state Rep. Celia Israel, D-Austin, said from the front of the chamber minutes before her colleagues cast their votes. “It’s been cloaked in religious freedom, but the genesis, the nexus of this bill, is in hatred.”

When the bill was first filed, it contained sweeping religious refusals language that had the potential to gut the few existing protections for gay communities, hailing from a national sweep of anti-LGBTQ model legislation. As it’s made its way through the Legislature, the bill has been progressively stripped of its most controversial provisions, leaving a version that largely codifies existing legal protections: freedom of religion and freedom of association.

On Monday, House sponsor Rep. Matt Krause, R-Fort Worth, weakened the measure further, removing a provision that would have empowered the Texas attorney general to bring lawsuits against governmental entities accused of religious discrimination.

Krause said removing the provision was a show of “good faith,” as it had proved a “big sticking point” with opponents of the bill. Given the changes he described as efforts to compromise, Krause said he was surprised at the level of opposition to the measure.

“Look at the language in this bill,” Krause said. “There is nothing discriminatory in the language. … There is nothing discriminatory in the intent.”

But despite the revisions, the bill “perpetuates the rhetoric that leads to discrimination, to hate and ultimately bullying that leads to the consequence of people dying,” said state Rep. Mary González, D-Clint, who chairs the LGBTQ Caucus.

State Rep. Rafael Anchia, D-Dallas, who lobbed an unsuccessful point of order aimed at killing the bill, questioned Krause for some 30 minutes about how the bill might spark discrimination. And each member of the newly formed LGBTQ Caucus spoke against the bill, several of them emotionally, just before the House voted.

One member of the caucus, state Rep. Jessica González, D-Dallas, tried and failed to amend the bill with language that would have protected LGBTQ communities against discrimination from employers and the government. Currently, there is no state law that explicitly prohibits employers from firing workers based on their sexual orientation or gender identity, but some cities have codified those protections at the local level.

Her amendment failed 65-76.

With emotional appeals looking unlikely to change minds, several LGBTQ Caucus members tried to persuade their colleagues to oppose the bill out of practicality — telling them, sometimes subtly and at times directly, that a vote for this bill could hurt their reelection chances in 2020.

“Members, this bill is here, being debated on the floor today, to make LGBTQ Texans feel less than, to make us feel attacked by our government,” said state Rep. Erin Zwiener, a Driftwood Democrat and freshman member of the LGBTQ Caucus. “We are living in history, members. Attitudes toward the LGBTQ community have changed rapidly over the past few decades. Young Texans in particular are overwhelmingly accepting of people of all sexual orientations and gender identities.”

Then she put a finer point on it. “You don’t need this vote,” Zwiener said.

Minutes later, the bill passed, with just one Republican, state Rep. Sarah Davis of Houston, voting against it. House Speaker Dennis Bonnen, who has said he supports the bill, did not cast a vote, as is customary.

The bill was revived in the Texas Senate last week after the LGBTQ Caucus effectively kept it from passing earlier this month.

Proponents have said it is necessary to reaffirm protections based on religion, citing incidents like the San Antonio City Council’s decision earlier this year to prohibit Chick-fil-A from opening in the city’s airport, with one council member citing the franchise’s “anti-LGBTQ behavior.” Some supporters of the bill labeled it the “Save Chick-fil-A Bill.” Krause said no business should be discriminated against based on its donations to religious organizations. Texas Attorney General Ken Paxton, who has long cast himself as a crusader for religious liberty, launched an investigation into the city’s actions.

Proponents and detractors acknowledged that the bill is likely to spark activity in the courts. Krause said that even without a provision empowering the attorney general to sue, individuals and organizations have a private cause of action under the bill — and can always look to groups like the First Liberty Institute, a law firm that crusades for religious liberty.

Opponents, meanwhile, emphasized that challenges to the law would mean major costs to the state.

“I have no doubt that if passed, SB 1978 will be fought in the courts at every level and at great expense to the taxpayers. To vote yes today is to put your signature on that invoice,” said state Rep. Julie Johnson, the Dallas Democrat who successfully sank the bill in its first appearance on the House floor earlier this month. “The underlying message remains the same — and that message poisons this state. It sends the message that Texas is not open and welcoming to all.”

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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86th TX Lege

Texas Senate Passes Religious Liberty Bill That LGBTQ Advocates Fear Licenses Discrimination

The measure moved quickly through the Senate after the LGBTQ Caucus killed a near-identical proposal on a procedural motion last week in the Texas House.

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State Sen. Bryan Hughes, R-Mineola, on the Senate floor on May 15, 2019. Photo credit: Juan Figueroa / The Texas Tribune

This article originally appeared in The Texas Tribune

Over the fierce opposition of Democrats, the Texas Senate on Wednesday advanced a significantly watered-down version of a religious liberty bill whose original form some LGBTQ advocates labeled the most discriminatory piece of legislation filed this session.

The bill requires one more vote from the Senate before it can return to the Texas House, whose LGBTQ Caucus killed a nearly-identical proposal on a procedural motion last week. But the House is likely to advance the measure if given a second pass, at least according to the lower chamber’s leadership.

As filed, Sen. Bryan HughesSenate Bill 1978 contained sweeping religious refusals language that brought LGBTQ rights advocates out against it in force. Proponents, for their part, have labeled the Mineola Republican’s proposal the “Save Chick-fil-A Bill,” in reference to a provision that would empower the Texas attorney general to sue San Antonio for excluding the Christian-owned chicken franchise from its airport.

Senate Democrats used every means they had — long lines of questioning, a slew of proposed amendments and a procedural point of order — to fight the bill, or at least tweak it as it was debated. But ultimately, after three hours of discussion, the measure passed on a 19-12 vote, with Brownsville Democrat Eddie Lucio Jr. voting for it and Amarillo Republican Kel Seliger voting against it.

Still, the messy floor fight many advocates feared would load up the bill with discriminatory amendments did not materialize.

The original version of Hughes’ proposal prevented government retaliation against an individual based on that “person’s belief or action in accordance with the person’s sincerely held religious belief or moral conviction, including beliefs or convictions regarding marriage” — language advocates feared would embolden businesses to discriminate against gay Texans. The revision, which Hughes made on the floor, outlaws government retaliation against someone based on their association with or support of a religious organization. That revised language is largely duplicative of existing protections for freedom of religion and freedom of association.

But advocates — pointing to the bill’s origins, and to its roots as model legislation from anti-gay efforts across the nation — adamantly opposed the bill, lobbying lawmakers to do so as well. Samantha Smoot, interim director of the advocacy group Equality Texas, said this week the measure is “part of an insidious, coordinated strategy to advance anti-LGBTQ messages and discriminatory public policies.”

Democrats, questioning whether Hughes’ bill would protect organizations like the Westboro Baptist Church — called “arguably the most obnoxious and rabid hate group in America” by the civil rights group Southern Poverty Law Center — worked to amend the bill to clarify that it does not protect discriminatory groups hiding behind the cover of religion. Pointing to the law’s definition of “religious organization,” Hughes asserted such language was unnecessary, and said some amendments could “confuse” the bill.

State Sen. José Menéndez, a San Antonio Democrat who has filed a number of bills to outlaw discrimination against LGBTQ communities, questioned why the upper chamber is debating a measure that worries gay communities instead of a measure that protects their rights.

“Session after session, we end up entertaining legislation that sends a message to my LGBT staff members…They feel they’re coming under attack for who they are. So the question I have is: What do you say to them?” Menendez asked. “Do you think Chick-fil-A needs more protection from us than our constituents who have a history of being discriminated against?”

Throughout the lengthy floor debate, Hughes maintained that his bill does not sanction discrimination.

“I would only ask you to look at the language in this amendment we’ll be offering and show us where there’s discrimination,” Hughes said. In the new version of the measure, he said, “folks will be hard pressed to find discrimination.”

The bill will need to move quickly if it is to make it to the governor’s desk. The deadline for the House to pass it is Tuesday; before then, it must receive a committee hearing and approval, and also move through the lower chamber’s calendars committee.

Its chances look good in the lower chamber, though it died there on a procedural motion last week. House Speaker Dennis Bonnen told Spectrum News this week he personally supports the bill, adding, “I think it would pass the House.” A House companion bill has 70 co-authors, nearly half the chamber.

Hughes’ bill, which he amended on the floor, is near-identical to the House proposal that died last week — but with one notable difference.

Hughes’ bill says it does not apply to a 2017 law that made it illegal for the state to contract with companies unless they pledge not to boycott Israel; Gov. Greg Abbott recently signed a bill to narrow that law, excluding state contractors with very few employees, after a federal judge temporarily blocked the law’s enforcement, citing free speech concerns.

As senators slogged through the debate, one recurring theme from Democratic opposition was: Why spend time on a controversial measure when there are so many other priorities to complete? And, some added, if the bill is largely just a codification of existing protections, why bring it forward at all?

“Can you identify the shortcomings of the Constitution in protecting religious freedom?” asked Sen. Carol Alvarado, D-Houston.

“This is covered under the First Amendment, so I’m not sure what your angle is,” she added, after reading from it.

Responding to such questions, Hughes called the measure an important “vehicle for protecting those First Amendment rights.”

That vehicle could come in the form of a lawsuit from the Texas attorney general, who under Hughes’ legislation would be empowered to sue governmental entities accused of discriminating based on religious affiliations. One likely candidate for such a lawsuit is the fast food franchise Chick-fil-A, which was recently blocked from opening a restaurant in the San Antonio Airport after a member of the city council said he could not support a company with “a legacy of anti-LGBTQ behavior.”

Texas Attorney General Ken Paxton, who has billed himself as a crusader for religious liberty, leapt into the ensuing culture war, launching an investigation into the city’s actions in that case and asking the U.S. Department of Transportation to probe the situation as well.

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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86th TX Lege

Texas Senate Revives, Fast-Tracks Religious Liberty Bill that LGBTQ Caucus Killed in the House

The measure, which had yet to advance in the Senate, was swiftly voted out of a surprise committee hearing Monday, days after companion legislation in the House died on the floor.

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The Senate bill, filed by Sen. Bryan Hughes, R-Mineola, prevents the government from taking “adverse action” against individuals for acting in accordance with their “sincerely held religious belief or moral conviction, including beliefs or convictions regarding marriage.” Photo credit: Juan Figueroa / The Texas Tribune

This article originally appeared in The Texas Tribune

After LGBTQ lawmakers in the Texas House killed a religious liberty bill they feared could be dangerous to their community, the Texas Senate has brought it back — and looks to be fast-tracking it.

House Bill 3172, by state Rep. Matt Krause, R-Fort Worth, effectively died Thursday after members of the lower chamber’s first-ever LGBTQ Caucus torpedoed it with a pair of procedural ploys. On Monday, a companion bill filed in the Senate by Sen. Bryan Hughes, R-Mineola, moved for the first time in weeks. After being unexpectedly added to an afternoon committee docket, it was swiftly voted out of the panel on a party-line vote.

Within the hour, the bill was placed on the Senate’s agenda, making it eligible for a vote later this week.

As filed, the Senate bill prevents the government from taking “adverse action” against individuals for acting in accordance with their “sincerely held religious belief or moral conviction, including beliefs or convictions regarding marriage.” Advocates fear that would embolden businesses to decline service to members of the LGBTQ community.

Faced with those concerns at a contentious late-night hearing, Krause significantly watered down the House version, removing some of the strongest language and spurring groups like Texas Impact, a faith-based organization that opposes discriminatory measures, to remove their opposition to it.

That watered-down version — which Hughes has indicated he prefers — would prevent government entities from taking “adverse action” against individuals or organizations based on their “membership in, affiliation with, or contribution, donation, or other support provided to a religious organization” — protections that, in large part, already exist in law. It also would have empowered the Texas attorney general to sue on behalf of individuals or organizations claiming religious discrimination.

Last week, when that version of the bill died in the House, it was due to an objection that the bill hadn’t followed the proper procedures — not an up-or-down vote on its merits from lawmakers. The House version of the bill had a total of 70 lawmakers — nearly half the chamber — signed on as authors.

In an interview minutes after he watched his bill die on the House floor, Krause said he was surprised advocates and his LGBTQ colleagues opposed the new version of the bill, which he said had been significantly altered to ameliorate their concerns. He added that he hoped to see the bill move in the Senate.

Hughes did not offer a watered-down version Monday but indicated he plans to amend the bill on the Senate floor so that it aligns with Krause’s slimmer proposal.

“[Rep. Krause] worked very, very hard, worked with stakeholders all across the spectrum, to come up with language that was not offensive, that would accomplish the intended ends without harming, without causing problems,” Hughes said as he laid the bill out at a sparsely attended committee hearing Monday. He added that he intends to “make the bill look more like the agreed-to language that Rep. Krause was able to work out over in the House.”

Five Republicans on the committee voted for the bill, and Sen. Judith Zaffirini, D-Laredo, voted against it.

If the bill is to proceed, it will have to maintain its blistering pace. Next Tuesday is the deadline for the House to approve Senate bills. Before it reaches the House floor, the measure would need to win approval from the full Senate, be referred by the House speaker to a committee, get scheduled for a hearing and earn a positive vote from a House committee.

Advocates have long feared that floor debate on the bill in the socially conservative Texas Senate could result in a slew of anti-LGBTQ amendments. In a one-page handout issued to Texas House members last week in anticipation of floor debate, the advocacy group Equality Texas warned that if the measure came up for debate, it could spark a “‘bathroom bill’ style floor fight.”

The Texas Senate already passed a different religious refusals bill. Senate Bill 17, which advocates call a “license to discriminate,” would allow occupational license holders like social workers or lawyers to cite “sincerely held religious beliefs” when their licenses are at risk due to professional behavior or speech. Advocates say the Hughes bill moving this week — at least in its original form — contains all that language and more troubling provisions.

“A majority of Texans want equal rights for LGBTQ people, not discrimination,” said Sam Smoot, interim director of Equality Texas. “In the final days of the session, we hope state leaders will return to the position they held on Jan. 8, that this session would not focus attacks on the LGBTQ community.”

Supporters of the bill — notably, the hardline group Texas Values, which pushed the bathroom bill in 2017 — have dubbed it the #SaveChickFilA bill. That apparently refers to a provision that would lay the groundwork for Attorney General Ken Paxton to sue San Antonio, whose City Council voted earlier this year to keep Chick-fil-A from opening a restaurant in the city’s airport after one member, Robert Treviño, said he could not support a company with “a legacy of anti-LGBTQ behavior.”

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

Disclosure: Equality Texas 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. Find a complete list of them here.

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