ACLU of Texas Demands Inquiry on Reported Anti-Gay Discrimination in El Paso Restaurant

Equality Texas also Calls for Fact-Finding on El Paso Police Department’s Response

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AUSTIN – The American Civil Liberties Union of Texas Thursday called for an official investigation of the El Paso Police Department response to a June 29 incident when a group of men were reportedly ejected from Chico’s Tacos, an El Paso restaurant, apparently because two of the men kissed each other.

The ACLU of Texas, the state affiliate of the national non-profit civil rights organization, and Equality Texas, a statewide LGBT advocacy group, urged city officials push for an investigation of this reported incident as advocacy groups mobilized to protest both Chico’s and the City’s actions relating to the matter.

"We’re extremely concerned that the actions of the restaurant employees and the El Paso police may have violated the law," said ACLU of Texas legal director Lisa Graybill. "The City of El Paso prohibits restaurants from refusing service to anyone based on their sexual orientation, and the police should have enforced that ordinance.”

The group of men was reportedly at Chico’s on June 29, when they were asked to leave by private security guards who saw two of the men kissing. According to news reports, the guards told the men that “faggot stuff” wasn’t allowed in the restaurant. Police were called to the scene by both parties, but instead of assisting the men, the responding officer reportedly threatened to cite them for “homosexual activity.” Police reportedly told the men that same-sex kissing was forbidden in public.

"It is absolutely shocking that an El Paso police officer would be so poorly trained on the law," said ACLU of Texas staff attorney Fleming Terrell. "No such prohibition exists under city, state or federal law, nor would the Constitution permit it."

The Supreme Court has long held that discrimination on the basis of sexual orientation violates the Constitution's guarantee of Equal Protection when it bears no rational relationship to any legitimate state interest. Although a statute prohibiting homosexual sodomy remains on the books in Texas, it is no longer enforceable. The Supreme Court found the statute unconstitutional in a landmark 2003 decision, Lawrence v. Texas, a case in which the ACLU and ACLU of Texas submitted a friend-of-the-court brief.

The El Paso Ordinance, which was adopted the same year the Lawrence decision was issued, specifically prohibits places of public accommodation - like restaurants, hotels, and other businesses - from discriminating against individuals on the basis of their race, gender, gender identity, sexual orientation, color, religion, ethnic background, or national origin.

Paul Scott, Executive Director at Equality Texas, noted that "While neither state nor federal law explicitly prohibits discrimination against LGBT individuals in public accommodations, the City of El Paso, like other major Texas cities including Austin, Dallas, and Fort Worth, went above and beyond to adopt an anti-discrimination ordinance that protects LGBT individuals. This makes what reportedly happened in El Paso all the more disappointing. Additionally, the continued reference to the unconstitutional sodomy statute by law enforcement officers is further proof that the Texas Legislature needs to repeal this statute and get it off the books."

Ken Choe, Senior Staff attorney with the ACLU's national Lesbian Gay Bisexual and Transgender (LGBT) Rights Project noted, "This kind of discrimination, sadly, is more prevalent that people might think in this day and age." Recently, the ACLU successfully represented two men in a complaint against a McDonald's restaurant in Louisville, Kentucky after an employee called them and three friends a series of anti-gay slurs. The restaurant chain paid a cash settlement and agreed to train its managers on diversity issues. "As the recent McDonald's case illustrates, discriminating against LGBT patrons is both illegal in cities with ordinances like El Paso's, and is also bad business, as more and more Americans have realized."

The ACLU of Texas urges persons with information about the incident to contact Staff Attorney Fleming Terrell at aclutx@aclutx.org or phone (512) 478 7300 x 100. Equality Texas can be reached at info@equalitytexas.org or phone (512) 474-5475.