San Antonio Exclusion from Government Commissions of People Who Have Ever “Demonstrated” “Bias” “by Word or Deed”

According to San Antonio Municipal Code § 2-9 (enacted 1994),

No person shall be appointed to a position if the [city] council finds that such person has, prior to such proposed appointment, engaged in discrimination or demonstrated a bias, by word or deed, against any person, group or organization on the basis of race, religion, national origin, sex, age, or handicap.

A draft amendment to the ordinance would add “sexual orientation, gender identity, [and] veteran status” to this. So people would be (and, as to examples 1, much of 2, and 5 already are) disqualified from membership on San Antonio Boards and Commissions if they had ever, for instance,

  1. Said that they think that conservative Christians, devout Catholics, or extremist Muslims are foolish or evil.
  2. Discriminated in choosing their friends based on sex, religion, national origin, race, or sexual orientation.
  3. Helped formulate — or perhaps even just applied — a private group’s (e.g., the Boy Scouts’) lawful policy excluding group members based on sexual orientation, religion, or sex.
  4. Preached a sermon, gave a speech, or otherwise expressed religious, political, or moral views condemning homosexuality.
  5. Opposed same-sex marriage rights, assuming the City Council agrees with those who believe such opposition “demonstrate[s] … bias against any person[ or] group on the basis of … sexual orientation” (which it probably does, whether or not you think such bias is justified).
  6. Said that men or women were, for biological reasons or otherwise, better or worse at certain tasks.

Of course, the City Council could avoid this for people or views it likes by just declining to make the requisite “find[ing].” (The sponsor of the revised ordinance so argued in its defense.) But if the Council is pointed to evidence of such “bias” “demonstrated” “by word or deed” at some point in the past, and it makes an honest finding based on such evidence, then the ordinance outright forbids the appointment of the person to the position — regardless of any justification for the bias, or lack of relation between the bias and the position’s duties, or even change of heart on the part of the applicant. (The sponsor and Equality Matters claim that “the sole aim of the proposed ordinance is to ensure that city officials don’t ‘reserve the legal right to’ discriminate against individuals on the basis of their sexual orientation or gender identity,” and Equality Matters argues that the ordinance “is meant to prohibit clear cases of professional discrimination and bias — not bad personal thoughts,” but the text of the ordinance is far broader than that.)

I doubt that the ordinance, whether in its current form or with the proposed revisions, is unconstitutional. High-level government decisionmakers generally have broad authority in considering an applicant’s opinions in choosing relatively high-level appointees, and likely most of the boards involved here would qualify. (The proposed revisions would also bar people and organizations with government contracts from engaging in discrimination, but that’s just a normal discrimination ban, without any exclusion of people who have “demonstrated” “bias” “by word or deed.”) A Mayor could, for instance, choose to appoint only Democrats to boards; a City Council could choose to appoint only Republicans or gay rights supporters or gun control opponents to boards. And if city officials could discriminate based on prospective appointees’ ideology themselves, I think they could likewise mandate that by ordinance as well.

But not everything that’s constitutionally permissible is a good idea. Indeed, both the current ordinance and the proposed revisions seem to me to be intolerant and narrow-minded, and of course bad for anyone who wants to express any of the views that I mention above (or act on those views, through lawful discrimination in their private lives).

The sponsor of the new amendments is reported to have proposed to remove any change to this particular section, given the opposition that it has aroused. But even if the existing provision isn’t amended to add “sexual orientation, gender identity, [and] veteran status,” and is limited to “word[s] or deed[s]” that “demonstrate” “bias” based on “race, religion, national origin, sex, age, or handicap,” that’s still bad enough; I hope that provision gets repealed altogether, though I’m not holding my breath.

Thanks to Ted Balaker (Korchula Productions) for the pointer.

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