Legal Victory for San Antonio Nonprofit - Esperanza Peace and Justice Center in San Antonio, Texas - Brief Article - Statistical Data Included

Art in America, July, 2001 by Frances Colpitt

In a David-and-Goliath decision by the U.S. District Court, the Esperanza Peace and Justice Center in San Antonio emerged victorious in its lawsuit against the city and former mayor Howard Peak [see "Front Page," Nov. '97]. Damages to be awarded to Esperanza, a nonprofit arts and advocacy organization, had not been determined as this issue went to press. The suit, filed in 1998, stemmed from the city's defunding of the organization a year earlier after religious groups protested its backing of "Out at the Movies," a gay and lesbian film festival. Two other plaintiffs, unincorporated associations for which Esperanza serves as fiscal agent, were named in the suit: the San Antonio Lesbian and Gay Media Project, sponsor of the film festival, and VaN, a visiting artists program. Although the festival did not receive any city monies previously granted to Esperanza, it was nevertheless the flashpoint of the controversy. As in years past, the center had been budgeted to receive $62,500 in funding at the recommendation of a peer panel of arts professionals, the city's cultural advisory board and the now-defunct department of arts and cultural affairs.

On Aug. 21 and 22, 2000, the case was finally heard in court. The city argued that it had legitimate cause to reject Esperanza's "promotion" of a gay and lesbian lifestyle, since the belief that homosexuality is immoral is "neither novel nor new." Judge Orlando L. Garcia demurred, noting that "racial discrimination also has `ancient roots.' but the antiquity of stupid beliefs does not make them constitutionally acceptable." Citing the National Endowment for the Arts v. Finley case, he found that the city cannot deny funding based on the fact that its constituents disagree with the applicant's point of view.

The city also argued that Esperanza was ineligible for arts funding since it is a political rather than an arts organization. Referring to Esperanza's sale of pottery made by low-income women, then-mayor Peak testified he would need to know "what kind of people" made the work in order to determine if it is art or not. The judge rejected the city's argument, observing that "views labeled `political' are usually those that are considered controversial or challenge the status quo."

On May 15, 2001, Judge Garcia found that the mayor and 10-member city council violated the First Amendment by committing viewpoint discrimination based on homophobia, and the Fourteenth Amendment by denying equal protection under the law when they rejected the organization's 1997 grant application. Judge Garcia's 84-page ruling determined that the city also knowingly violated the Texas Open Meetings Act when members of the city council met in the office of the city manager on the night before the 1997-98 budget was to be approved. On a fourth point, the judge found in favor of the city, rejecting Esperanza's claim that the city withheld funding in 1998-99 in retaliation against the organization's filing of the lawsuit. Since funding for many of the city's arts organizations was cut by 15 percent in 1997, it is likely that the center's funding will be restored at a similarly reduced level.