Going Both Ways?

While Houston City Attorney Anthony Hall crafted an antidiscrimination ordinance that would accord gays the same legal protections as recognized minorities such as women and ethnic groups, his lawyers successfully won a dismissal of a federal lawsuit by arguing the opposite.

Defending against a damage suit brought on behalf of a murdered waiter, Marc Kajs, the city contended that "the law does not recognize homosexuality, male or female, as a protected class afforded equal protection." The estate of Kajs, represented by his mother, Gloria Swidriski, sued the city, arguing that Houston police failed to act on numerous warnings that Ilhan Yilmaz was threatening Kajs and intended to do violence. Yilmaz fatally shot his estranged lover in the parking lot of the Urbana restaurant in March 1998 (see "Bullets After Brunch," by Wendy Grossman, May 4, 2000).

In a dismissal order, Judge Melinda Harmon agreed with the city that "in this case, because Kajs is not a member of any protected class, Swidriski's equal protection challenge fails." Harmon also found no legal grounds to support the contention that Houston police had created the danger to Kajs by not acting on his complaints concerning Yilmaz.

Swidriski's attorney, Robert Rosenberg, is appealing Harmon's ruling with the support of a brief from the American Civil Liberties Union. He accuses the city of promoting the concept of nondiscrimination against gays while undercutting it in court.

"It's contrary to the public position where [Mayor Lee] Brown and [Councilmember] Annise Parker go out and have these rallies about equal protection while you've got the city attorney doing what he's doing."

Rosenberg figures that if Brown is sincere, he "ought to be giving a directive to the legal department that we're not arguing against equal protection for anybody."

Grant Martin, a political consultant working for passage of the antidiscrimination ordinance, says Rosenberg is missing the point. Martin, a former Baker Botts attorney, says the need for an antidiscrimination ordinance arose because current law does not recognize gays as a protected class.

In the Swidriski case, "the city is arguing that gay people as a class don't have due process rights under the 14th Amendment," he says, "and I think that's right. That's what we're fighting for."

Parker says the nondiscrimination ordinance brought before council last week is a step toward addressing the lack of legal protection for gays.

"I do know we're not a protected class, but I bet if we had this nondiscrimination ordinance, [Rosenberg] would have had a stronger case."

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