It may not be overtly apparent, but I can be a pretty romantic guy. I like to surprise my girlfriend with little gifts, and every now and then I even like to take her out for a nice dinner. And, if the mood strikes, I might even lean over the table and give her a light kiss, expressing my affection. Nothing gratuitous at all. As innocent as holding hands.
Apparently this brazen sign of affection is frowned upon in El Paso, Texas. Well, that is, if you’re gay.
Yesterday, the El Paso Timesreported that five gay men were kicked out of Chico's Tacos restaurant when two members of their party embraced with a peck on the lips. The restaurant’s security staff informed the men that their fine establishment didn’t allow “that faggot stuff,” and promptly escorted them off the premises. Well, one member of the group, Carlos Diaz de Leon, called the police to file a report of discrimination.
Surely El Paso’s finest would step in and rectify the situation—or so you’d hope.
Well, apparently not. When the El Paso police showed up, they sided with the restaurant, informing the five men that it’s illegal for two men to kiss in public. According to De Leon, the men were told they could have been cited for “homosexual conduct.” The cops let them off easy by only kicking them out of the restaurant, you see. I mean, they could have been criminally charged for their public display of affection. That is, their gay public display of affection.
Unbeknownst to the El Paso police officer on the scene—a man clearly well versed in the law—the U.S. Supreme Court ruled Texas’s asinine, archaic, despicable sodomy laws unconstitutional six years ago in Lawrence v. Texas. I guess these minor changes—you know, Supreme Court cases—take a while to filter down to local police districts. Even so, Lawrence v. Texas merely upheld the right to sexual privacy—thus it might be reasonable to assume that “homosexual conduct” (whatever that is) might be illegal in public settings in Texas. This is Texas, after all. That might be a reasonable argument, if in fact the city of El Paso hadn’t passed an ordinance banning discrimination based on sexual orientation by businesses open to the public in 2003. Somebody must have forgotten to give the El Paso Police Department the memo.
As the facts stand today, no official report was filed, one of the security guards has contacted a lawyer, and the ACLU of Texas released an official statement condemning the incident. The assistant manager of the restaurant refused to comment, and the El Paso Police Department responded to press inquiries by noting that a more appropriate charge for what happened would “probably be criminal trespass.”
There’s a real tension here between a private business open to the public, state and local anti-discrimination legislation, and individual-level homophobia. Blatant refusal of services based on sexual orientation is supposedly barred in most states, yet private businesses have the supposed right to refuse those very same services for any reason they choose. Yet the business’s openness to the public makes any such refusal suspicious, if not outright discriminatory. The compromise in most states seems to be relatively straightforward: You can’t adopt a policy that explicitly discriminates against individuals based on race, sex, or orientation, and any policy you do adopt must be applied uniformly and equally to individuals regardless of race, sex or orientation.
Still, we can’t exactly legislate against homophobia. Systematic discrimination, yes. But with individual-level prejudices, fears, and disrespect, things get a little fuzzy. A new law helps change public perceptions, sure, but a decree from above doesn’t necessarily change individual-level mentalities on the ground. That's just a reality of prejudice and discrimination. An aggravating and sad reality, to be sure.
But even if we fail to legislate thoughts and beliefs, the least we can do is follow the letter of the law. Apparently the El Paso police missed that memo, too.