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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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Elections 2020

Castro Questions Biden’s Memory, Democrats Express Unease

The Democratic presidential candidate’s rivals offered mixed reactions to the tense tangle between Castro and the former vice president.

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Former Secetary of Housing and Urban Development Julian Castro speaking with attendees at the Presidential Gun Sense Forum hosted by Everytown for Gun Safety and Moms Demand Action at the Iowa Events Center in Des Moines, Iowa. Photo credit: Gage Skidmore / Wikimedia

This article originally appeared in The Texas Tribune

Julián Castro struck a nerve Thursday night — and he’s not saying sorry.

In sharply questioning rival Joe Biden‘s memory, the Democratic presidential candidate brought to the fore simmering concerns about the 76-year-old former vice president’s fitness for office. And while Castro has sought to keep the spotlight on the policy dispute that fueled the moment, he held firm Friday on the overall exchange.

The tense interrogation, which came during a health care exchange at the third primary debate here, divided other candidates, with at least one saying Castro raised a legitimate issue and two more expressing unease with the topic.

In the latter category was Castro’s fellow Texan, Beto O’Rourke, who felt the wrath of Castro in the first debate and said Friday morning he “wasn’t really excited by” how Castro handled Biden. In a CNN interview, O’Rourke equated Castro’s questioning with the “pettiness, the name-calling, the small-ball politics” that O’Rourke said will not defeat President Donald Trump and unite the country.

“Look, if you’ve got a policy difference with Joe Biden, by all means, let’s air it at the debate, but that kind of personal attack I don’t think is what we need right now and is insufficient to the challenges we face,” O’Rourke said.

The blowup came as Castro criticized Biden’s health care plan, saying it would fall short of the goal of universal coverage because it requires people to buy in. After Biden denied that, Castro let it rip.

“Are you forgetting what you said two minutes ago?” Castro asked, “Are you forgetting already what you said just two minutes ago? I mean, I can’t believe that you said two minutes ago that they had to buy in and now you’re saying they don’t have to buy in. You’re forgetting that.”

A short time earlier in the debate, Biden did make a reference to certain people being able to buy in to his plan, but there seemed to be more nuance than Castro implied. Biden first said “anyone who can’t afford it gets automatically enrolled in the Medicare-type option we have.” He later said that if Americans lose their job and the insurance that comes with it, “you automatically can buy into this.”

In the immediate aftermath of the debate, Biden’s campaign suggested that Castro had not learned from the first two debates that taking “personal cheap shots” at Biden has not worked for other contenders. Castro disputed the notion it was a personal attack, seeking to emphasize the broader policy debate they were having.

Castro continued to stand his ground Friday morning in media appearances and a fundraising email that told supporters he was being “viciously attacked” for fighting for them in the debate.

“I had a critical choice to make on the debate stage last night,” Castro wrote. “I could either play it safe and give Vice President Biden a free pass like everyone else. Or I could speak up, challenge the conversation, and demand answers for you and your family.”

Biden’s campaign sent its own email to supporters saying Castro “got it wrong” and that the primary “should be decided on who can deliver for the American people, not who can throw the lowest blows (we already have a President who does that).”

The one candidate who offered some cover to Castro was U.S. Sen. Cory Booker of New Jersey.

“There’s a lot of people concerned about Joe Biden’s ability to carry the ball across the end line without fumbling,” Booker told CNN shortly after the debate. “And I think Castro has some really legitimate concerns about, ‘Can he be someone in a long, grueling campaign that can get the ball over the line?’ and he has every right to call that out.”

At the same time, Booker added, “I do think that tone and tenor is really important, that we can respect Vice President Biden and disagree with him.”

The level of at least discomfort with Castro’s aggressive tack was more palpable among other hopefuls. Another rival of the two men, Amy Klobuchar, told CNN she found Castro’s interrogation “so personal and so unnecessary,” suggesting it was “something that Donald Trump might tweet out.”

Biden himself has not weighed in yet on the Castro controversy. He was spending Friday raising money in southeast Texas, first at an event in Houston and then at one in Beaumont.

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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Texas

El Paso Democrat Sen. José Rodríguez Announces Retirement

Rodríguez, who was first elected in 2010 to represent Senate District 29, said he would retire from the Senate at the end of this term in January 2021.

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State Sen. José Rodríguez, D-El Paso, speaks to the press following Gov. Abbott's State of the State address in Austin on Feb. 5, 2019. Photo credit: Emree Weaver/The Texas Tribune

This article originally appeared in The Texas Tribune

Editor’s note: This story has been updated throughout

State Sen. José Rodríguez, an El Paso Democrat, announced Friday that he will not seek reelection to the upper chamber in 2020.

Rodriguez informed El Paso colleagues of his decision in a text late Thursday night that was obtained by The Texas Tribune. He said he would make the announcement at “noon tomorrow at my office.”

“I started my tenure in the Senate with one of the worst budgets in the state’s modern history,” Rodríguez said in a written announcement on his retirement. “Fortunately, my last session was one where state leaders finally gave long overdue attention to our public schools.”

Rodríguez was first elected in 2010 to represent Senate District 29. The district, which hugs the Texas-Mexico border, is considered historically Democratic; it covers El Paso, Culberson, Hudspeth, Jeff Davis and Presidio counties.

The senator’s retirement announcement comes a day after the Senate Democratic Caucus announced that Rodríguez would step down as chair at the end of the year. State Sen. Carol Alvarado, D-Houston, will replace him at the post.

It’s unclear who all will announce bids for Rodríguez’s seat. One potential candidate could be state Rep. César Blanco, a fellow El Paso Democrat who serves as chair of the House Democratic Campaign Committee.

Patrick Svitek contributed to this story.

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

More Algae Tests Positive for Neurotoxins

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Barton Creek (center) flowing in to Lady Bird Lake. Photo credit: Chase Martin / therepubliq

Additional testing has revealed increasing levels of neurotoxins in algae at a greater number of locations. Samples were taken on Monday, August 12, 2019, at Auditorium Shores, at Red Bud Isle and at Barton Creek. Samples at Barton Creek were taken just below the pedestrian bridge over Barton Creek on the Ann and Roy Butler Hike and Bike Trail. All the samples contained greater amounts of neurotoxins than found the previous week.

Red Bud Isle remains closed. The public should not allow their dogs to swim anywhere in Lady Bird Lake. In addition, they should keep their dogs out of Barton Creek where algae is present.

In addition to swimming, dogs should not be allowed to drink the water in these locations. People should avoid handling the algae and minimize their exposure to the water. Boating and paddle-boarding is still allowed at your own risk. Pets and people who come into contact with the water should rinse off. If symptoms develop, they should seek immediate medical attention.

“Barking Springs” at the spillway of Barton Springs Pool is upstream of this area. Water at Barking Springs is cold and flows from Barton Springs and Barton Creek. At this time, we believe people and pets can continue to swim in this area at their own risk. They should avoid going downstream to areas with floating algae. They should be aware that bacteria is always a concern in smaller waterways where there is a high concentration of dogs.

Previously, algae in Barton Creek downstream of Barton Springs appeared to be a mix of harmless green algae. However, the most recent samples showed a low presence of blue green algae in the Barton Creek area of Lady Bird Lake. These samples did test positive for neurotoxins. This is a reminder that the situation is evolving and can change rapidly. Watershed Protection will be taking more samples for testing tomorrow.

The algae will naturally die off when cooler weather returns in the fall. At this time, the City of Austin has not identified a safe and effective way to treat or remove the algae, and it is likely that Red Bud Isle will remain closed for the next several weeks.

On Sunday, August 4, the City of Austin warned residents not to allow their pets to swim in or drink from Lady Bird Lake after being told that a dog had died from possible exposure to harmful algae. Since then, the City has been told about three other dogs who have died after swimming in the lake.

On Monday, August 5, the City was able to confirm the presence of algae that could produce a neurotoxin.

Drinking water remains unaffected by this situation. Austin Water regularly looks at algae levels on Lake Austin and Lake Travis and has not seen levels of concern for drinking water. Austin Water does not currently use Lady Bird Lake as a source for drinking water.

Dogs who ingest water contaminated with this toxin could have a number of symptoms. On the severe end, it could result in respiratory paralysis and death. Look for these signs in your pet within minutes to hours of exposure:

  • Excessive drooling, vomiting, diarrhea
  • Foaming at the mouth
  • Jaundice, hepatomegaly
  • Blood in urine or dark urine
  • Stumbling
  • Loss of appetite
  • Photosensitization in recovering animals
  • Abdominal tenderness
  • Progression of muscle twitches
  • Respiratory paralysis

The amount of toxins the dog ingests and licking of the fur are factors.

In people, possible health effects include:

  • Dermatologic signs or symptoms such as rash, irritation, swelling, or sores
  • Gastrointestinal signs or symptoms
  • Respiratory signs or symptoms
  • Fever
  • Headache
  • Neurologic signs or symptoms
  • Ear symptoms
  • Eye irritation

Austin Public Health routinely tracks emergency department visits. We have not seen any increases in unusual conditions that may be related to exposure to the water. APH will continue to monitor.

If members of the public have questions or concerns, please have them call 3-1-1 or 512-974-2000.

Source: City of Austin website

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