The Esperanza Peace & Justice Center

Never popular with the mayor or the Latino-majority City Council for their political stances, it was the Esperanza's annual gay and lesbian film festival, Out at the Movies, that ultimately served as the flashpoint for the Esperanza's August 21 date in federal court last August. In the heat wave of 1997, the Christian right launched a concerted attack on the Esperanza's gay and lesbian programming after the City Council announced an overall arts budget cutback. A summer of accusations against the Esperanza followed, which included hate mail, death threats, and derisive cartoons in the city's main newspaper. That September, the City Council—in a backdoor meeting—voted to de- fund the organization completely. The Esperanza was the only organization that lost all of its funds, despite high recommendations by a peer review panel and a seven-year track record of city funding. In one fell swoop, the Esperanza lost a potential $76,000 of its budget.

Joined in the lawsuit by two organizations under its fiscal umbrella—the San Antonio Lesbian and Gay Media Project and the small arts group VAN—the Esperanza responded by alleging that the City Council exercised viewpoint discrimination in their denial of funding, a violation of the First Amendment.

“The Esperanza expressed points of view that are protected by the Constitution,” said Amy Kastely, along with the legal team of seven women who defended the Esperanza. Kastely cites various court rulings, including the Supreme Court's ruling on NEA vs. Finley in 1998 and the University of Virginia case.  After an uproar over the NEA's role in funding homoerotic art by Robert Mapple- thorpe and Andres Serrano's crucifix in a jar of urine among others, the Court said that the Constitution does not allow governments to discriminate against groups based on the group's viewpoint.  In the Virginia case, the Supreme Court ruled in 1995 that because the university funded all sorts of student publications without restricting their content, the school could not single out Christian materials without squelching students' First Amendment rights.

Legal and constitutional scholars believe that the Esperanza may have a good case. In total, the Esperanza filed four claims against the city, all anchored by the First Amendment.

Because the Council defunded the Esperanza to “appease public animus,” swirling around the controversy of the gay and lesbian film festival—they violated the equal protection clause of the 14th amendment, says Kastely in an explanation of the Esperanza's second claim against the city. Then the Council deliberated the defunding in a closed backdoor session, similar to a game of musical chairs, thus appearing to avoid a quorum of six. “This is a violation of the Texas Open Meetings Act.” Finally, the Council refused to consider the Esperanza for funding in 1998, the year after their elimination, as retaliation for their filing of the lawsuit. “Another violation of the First Amendment,” and the final allegation of the Esperanza's four claims.

Denying one group funds because it espouses social views likely would violate the constitution, said David Dittfurth, a law professor at St. Mary's University to the San Antonio Express-News in the front-page publicity during the two-day trial in federal judge's Orlando Garcia's court.

Other constitutional experts seemed to agree with him. Elvia Arriola, a visiting professor at DePaul University in Chicago, has weighed in on the side of the Esperanza. Scot Powe, a professor of government and law at the University of Texas at Austin, told the San Antonio Express-News, “if (the) Esperanza doesn't win on the First Amendment, they're not going to win on anything else, because it's a stronger claim.”

Judge Orlando García, a former legislator and highly respected for his integrity, seems to have taken a substantial interest in the case. After complimenting the Esper- anza's lawyers for “one of the best-litigated cases” he had seen during his term on the bench, he asked both sides to file additional written arguments before he makes a decision.

Political columnist Carlos Guerra predicts that the city will appeal if they lose. That's why Kastely expects that Judge García wants to issue a decision that will withstand such an appeal at the conservative Fifth Circuit of Appeals in New Orleans.

Former Councilperson Roger Flores, an arts advocate who nevertheless voted to defund the Esperanza in 1997 in a unanimous decision, confessed the irony of it all to journalist Dianne Monroe in the San Antonio Current in the years before the trial. San Antonio is, he said, a city with a rich mestizo heritage. A city with with hot-pink bumper stickers that shout, “Puro San Antonio.”

This arts battle may lead, he said, “to chipping away at arts funding for the rest of the groups, whether they be controversial or not...it's really a sad commentary...not to look at art and culture as such an integral part of our city.”

The Judge's decision is expected before spring.              Z