Irvine Vice Mayor Mike Carroll

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Happy National Coming Out Day from a Proud Supporter of LGBTQ+ Rights!

Happy National Coming Out Day!

Observed since 1980, the one year anniversary of the first National March on Washington for Lesbian and Gay Rights, National Coming Out Day is a day for lesbian, gay, bisexual, transgender or queer people to be proud of who you are and your support for LGBTQ equality.  It is also a day for LGBTQ+ allies to come out as supporters of LGBTQ+ Pride and truly equal rights.

The foundational belief of National Coming Out Day is that homophobia thrives in an atmosphere of silence and ignorance, and that once people know that they have loved ones who are lesbian or gay, they are far less likely to maintain homophobic or oppressive views.  As the Human Rights Campaign states, “Coming out — whether it is as lesbian, gay, bisexual, transgender or queer — STILL MATTERS. When people know someone who is LGBTQ, they are far more likely to support equality under the law. Beyond that, our stories can be powerful to each other.”

I am proud that this year, for the first time, based on my motion and my organizing work with the community, Irvine flew the Pride Flag from City Hall in recognition of Pride Month.

I am also proud that on my motion, brought with City Councilmember Farrah Khan, the Irvine City Council unanimously repealed and removed a section of the municipal code (known as Measure N) that had prohibited any anti-discrimination protections for people based on their sexual orientation.

As the Voice of OC noted , “Over the last year, Irvine has seen a dramatic shift in its recognition of the LGBTQ+ community after widespread calls from the public for renewed action to acknowledge the community. In June 2019, the panel voted against flying the pride flag during pride month, with [Councilmember Mike] Carroll referring to the flag as a ‘ spectacle of divisiveness.’ . . . But last month, the  council reversed its position, voting 4-1 to fly the flag over City Hall for the remainder of June and to make it an annual occurrence, flying from Harvey Milk Day (May 22) to the end of pride month. The city also officially recognized pride month for the first time this June two weeks ahead of the flag vote. The City Attorney questioned whether we had the authority to repeal the anti-LGBTQ ordinance. The council decided to move forward with the vote I noted that the only challenges that could potentially come to their decision would be a lawsuit calling for the legislation to be restored to the old city code. “Who in their right mind is going to come sue us to put this anti-LGBTQ language back in our code?” Fox said. “Lets clean this up and move on.”

Also for the first time this year, the Lavender Democratic Club of OC issued an OC LGBTQ+ Voting Guide. The Voting Guide recommends voting for candidates who have pledged their support for LGBTQ+ equality legislation, with a specific commitment to stand with our community in matters related to these public accommodations. public facilities, federally-funded programs, employment, housing, education, credit, marriage equality, disability and family leave, public safety, and the Equality Act.

I am proud to say that I am recommended for California State Assembly (AD 68) and recognized as “a long-time champion for LGBTQ equality.”

With the recent news that marriage equality is in imminent peril at the Supreme Court, it is more important than ever to elect strong pro-LGBTQ+ advocates to the California legislature.

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Democracy in Action: Public Outrage Leads Irvine City Council to Call on U.S. Postal Service to End and Rescind Actions that Impede Prompt Delivery of the Mail!

Following reports of postal boxes disappearing across Orange County, coupled with recent news stories that the Postmaster General of the United States was removing thousands of postal boxes and mail-sorting machines, eliminating overtime for mail carriers, and reducing post office hours, I joined with Irvine City Councilmember Farrah Khan in calling for the Irvine City Council to speak up on behalf of our residents to urge the Postmaster General to immediately end and rescind these changes.

Thanks to tremendous public support, we succeeded!

At the Irvine City Council meeting on September 8, 2020, the Council unanimously agreed to send an official letter to the U.S. Postmaster, on behalf of our residents, to cease and rescind any actions that undermine prompt delivery of the mail, including “expeditious action to re-store mail sorting equipment and remedy the recent changes to USPS polices and procedures that would result in reduced or delayed mail service levels.”

Here is the full text of the official letter sent to the U.S. Postmaster General:

Thank you to everyone who wrote to the Irvine City Council in support of the U.S. Postal Service! This letter is truly the result of democracy in action.

Now, we must keep the pressure on the federal government to ensure that the USPS “to provide prompt, reliable, and efficient services to patrons in all areas and render postal services to all communities, without interruption.”

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UPDATED! Tell the Irvine City Council to Oppose the Slow Down of the U.S. Postal Service!

I have received numerous reports of postal boxes suddenly disappearing across Orange County, including Irvine.  These reports are consistent with recent changes in policy by the Postmaster General of the United States Postal Service, which have included removing thousands of postal boxes and mail-sorting machines, eliminating overtime for mail carriers, and reducing post office hours.

These changes in U.S. Postal Service policy have been faulted for slowing mail delivery — including the delivery of medicine and medical supplies veterans benefits, Social Security checks, census forms, and rent checks — and for making it more difficult for our residents to vote safely and with confidence that their ballots will be timely received during the COVID-19 pandemic.

For these reasons, Councilmember Farrah Khan and I will be asking our colleagues on the Irvine City Council to speak up on behalf of our residents and our businesses to urge the Postmaster General to immediately end and rescind these changes.

Here is the proposed Resolution:

RESOLUTION URGING THE U.S. POSTMASTER GENERAL TO CEASE AND RESCIND ALL ACTIONS THAT SLOW DOWN OR UNDERMINE THE PROMPT DELIVERY OF THE U.S. MAIL, ESPECIALLY DURING THE COVID-19 PANDEMIC AND THE U.S. PRESIDENTIAL ELECTION.

WHEREAS, The United States Postal Service is enshrined in the U.S. Constitution “to bind the country together through the correspondence of the people”; and

WHEREAS, The Postal Service guarantees universal delivery to everyone, ensuring affordable and equitable communication and delivery as a basic right; and is indispensable, especially during the COVID-19 pandemic, to the American people, especially veterans, seniors, and small businesses, delivering medications, stimulus checks, social security checks, census forms, rent checks, medical supplies, and election ballots;

WHEREAS, The Postal Service is one of the most important employers in the United States, providing family sustaining jobs, especially to veterans;

WHEREAS, By failing to seek regulatory approval on policy changes that have a nationwide impact, the United States Postmaster General has unilaterally implemented a series of revisions to the postal service’s protocols and procedures that threaten to undermine the timely delivery of mail across the country, including Irvine. These unilateral changes have included:

  • Removing mailbox locations around the country, including in Irvine and other cities in Orange County;
  • Decommissioning mail-sorting machines, with severe reductions in sorting capacity and the speed of delivery;
  • Severely limiting employees from working overtime, despite reported increases in demand and the need to compensate for employees who are out sick or at home quarantining; and
  • Instructing letter carriers to leave mail behind if it delays routes, running counter to the training postal workers traditionally receive to ensure prompt delivery of the mail;

WHEREAS, The USPS’s actions align with the President’s own recent assertion that he will prevent the postal service from being able to handle the expected surge in demand for voting by mail, and the USPS has warned several states, including California, that it could no longer guarantee timely compliance with all state election deadlines and delivery of all ballots cast by mail for the presidential election.

THEREFORE, BE IT RESOLVED, THAT THE CITY OF IRVINE URGES THE UNITED STATES POSTMASTER GENERAL TO IMMEDIATELY CEASE AND RESCIND ALL ACTIONS, INCLUDING BUT NOT LIMITED TO REMOVAL OF POST BOXES, DECOMMISSIONING OF MAIL SORTING EQUIPMENT,  AND RESTRICTING MAIL CARRIER OVERTIME, THAT SLOW DOWN OR UNDERMINE THE PROMPT DELIVERY OF THE U.S. MAIL, ESPECIALLY DURING THE COVID-19 PANDEMIC AND THE U.S. PRESIDENTIAL ELECTION.

PASSED AND ADOPTED by the City Council of Irvine at the meeting held on the 8th day of September 2020.

Please join us in urging the Irvine City Council to adopt this Resolution.

You can contact the other three members of the Irvine City Council to tell them to urge the Postmaster General to immediately cease and rescind that slow down or undermine the prompt delivery of the U.S. mail here:

Mayor Christina Shea:
christinashea@cityofirvine.org

Councilmember Anthony Kuo:
anthonykuo@cityofirvine.org

Councilmember Michael Carroll:
michaelcarroll@cityofirvine.org

You can also SIGN OUR PETITION here.

Thanks!

UPDATE: On August 27, 2020, the California Assembly voted 50-0 in favor of a Resolution that “urges the federal administration and the Republican-controlled U.S. Senate to cease and desist from all efforts to reduce the ability of voters to cast their ballots by mail or diminish public confidence in the vote by mail program as it relates to the November 3, 2020, general election” and that United States Postmaster General Louis DeJoy to immediately restore all mailboxes and mail sorters back to the communities from which they were removed in order to guarantee the timely and efficient delivery of vote by mail ballots in the November 3, 2020, general election.”

Of course, I would have voted in favor of this Resolution. Our current representative to Sacramento for the 68th AD, Steven Choi, again failed to show up to vote. In fact, Choi has one of the highest no-show rates in the CA legislature.  It’s time for us in AD68 to have a representative in Sacramento who cares about the people’s business and shows up to do the job he was elected to do.

UPDATE: Thank you to everyone who wrote to the Irvine City Council in support of the Postal Service. As the result of your efforts, the Council at its meeting on September 8. 2020, unanimously agreed to send an official letter to the U.S. Postmaster, on behalf of our residents, to cease amd rescind any actions that undermine prompt delivery of the mail.

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Tell the Irvine City Council to Implement Community Choice Energy (CCE) Now!

At our Irvine City Council meeting on July 14, 2020, we will be discussing Irvine’s next steps regarding implementation of a Community Choice Energy Plan.

Community Choice Energy (CCE) is a way for cities, counties or regions in California to look out for their own energy interests, a hybrid between regulated and deregulated electricity supply. CCE programs seek to provide energy that is cheaper and cleaner than energy provided by for-profit utility companies.

Nearly two years ago, on September 25, 2018, before a standing-room crowd, as Chair of Irvine’s Green Ribbon Committee, I joined with my colleagues on the Irvine City Council to vote to commission a feasibility study to determine the pros and cons of implementing a Community Choice Energy program in Irvine, including potential economic benefits for the community.

At the direction of the Irvine City Council, EES Consulting completed a comprehensive analysis of the feasibility (including costs and benefits) of a Community Choice Energy program in Irvine.  For this work, the taxpayers of the City of Irvine paid EES Consulting over $180,000.  We received the EES Consulting Feasibility Study in June 2019.

Among the study’s crucial conclusions was the projection that a CCE in Irvine would result in savings of $7.7 million per year in citywide electricity cost savings for Irvine residents and businesses, and a $112,000 per year savings for the City itself in municipal energy costs, as well as driving additional local economic development benefits, such as new jobs and $10 million in annual economic output.

Despite the extremely positive results of the feasibility study (or perhaps precisely because of these very positive results), the Republicans on the Irvine City Council insisted that we undertake a second study to evaluate the results of the first study.

I believed at the time that this second study was unnecessary and feared that it was really a scheme to delay and ultimately derail implementation of CCE in Irvine.

These fears have been born out.

In this second study (a so-called “third-party peer review”), MRW & Associates reviewed the EES Consulting Feasibility Study and found that, while there were some quibbles about the EES Consulting Feasibility Study’s assumptions and analysis, (1) the analytical approach of the EES Consulting Feasibility Study was sound; (2) the rate savings projected by the EES Consulting Feasibility Study is consistent with what current CCE programs are offering, and (3) a CCE program in Irvine could be financially viable.

In addition, MRW & Associates found that (4) the EES Consulting Feasibility Study adequately addressed the four CCE governance options available to the City, and (5) agreed with EES Consulting Feasibility Study that the two most reasonable options are forming an Irvine-only CCE or developing a Joint Powers Agreement (JPA) with other Orange County cities.

Nevertheless, according to the staff report, “Given the uncertainty of some variable inputs, MRW recommends that if the City pursues formation of a CCE, a more extensive and detailed pro forma analysis be required prior to implementation.”

In other words, despite overall agreement with the analytical approach and the positive conclusions of the EES Consulting Feasibility Study, the MSW report recommends that Irvine undertake (and pay for and wait for) yet another study, and of course, more paralysis by analysis.

Instead, the City Council should immediately implement the Community Choice Energy program that studies we have twice paid for show to be a tremendous benefit to both the City and the planet.

We also need to adopt and implement the stand-alone Climate Action Plan that the Irvine City Council unanimously voted to develop, with lots of public fanfare and self-congratulations, in July 2019.   Like the Community Choice Energy plan, I am concerned that the Republican majority on the Irvine City Council has no intention of adopting a stand-alone Climate Action Plan and is delaying implementation with no intention to move forward.

For all of these reasons, I call on all Irvine residents to sign the petition to “Tell Irvine’s City Council to Implement Community Choice Energy (CCE) Now.”

I also ask you to submit an e-comment to the Irvine City Council in support of implementing a CCE now, without further and unnecessary delay.

The Climate Action Campaign has created an engaging 10 minute video explaining the issue.

Watch it here:

 

 

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Tell the Irvine City Council To Repeal Its Unconstitutional Anti-LGBTQ Law!

“If the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects.” — Louis Brandeis, Justice of the United States Supreme Court

Please join us on July 14, 2020, when the Irvine City Council decides whether to approve the motion from Councilmembers Melissa Fox and Farrah N. Khan to repeal and remove a cruel and unconstitutional anti-LGBTQ ordinance that has been part of Irvine’s Municipal Code as Sec. 3-5-501 through 503 since 1989.

[UPDATE: Sign our Petition to Repeal and Remove Irvine’s Ant-LGBTQ Ordinance].

Most residents of Irvine do not know that our diverse and forward-thinking city has an ordinance on the books that specifically and explicitly denies anti-discrimination protection to people based on their sexual orientation.

In fact, most residents are shocked when they learn that the Irvine Municipal Code includes the following:

“Sec. 3-5-503. – City Council parameters.

Except as provided in section 3-5-502, the City Council shall not enact any City policy, law or ordinance that:

A.  Defines sexual orientation as a fundamental human right.

B.  Uses sexual orientation, in whole or in part, as the basis for determining an unlawful discriminatory practice and/or establishes a penalty or civil remedy for such practice.

C.  Provides preferential treatment or affirmative action for any person on the basis of their sexual orientation.”

We believe it is outrageous that this cruel and unconstitutional law is still on the books in Irvine! It’s long past time for it to be repealed and removed!

These provisions were added by Ord. No. 89-1, which was adopted as Measure N by 53% of the voters as an initiative on Nov. 7, 1989, overturning an Irvine Human Rights Ordinance enacted by the Council in July 1988 that prohibited discrimination based on sexual orientation.

The main proponent of the Measure N ballot initiative and the subsequent anti-LGBTQ ordinance was a group calling itself the “Irvine Values Coalition,” led by carwash-developer Michael Shea and his then-wife (and later Irvine mayor) Christina Shea.

According to Christina Shea, the initiative was needed because the earlier Human Rights ordinance gave “special legislative protection to the homosexual, bisexual and lesbian communities” and “homosexuality is characterized by a wide range of sexual perversions, varying degrees of promiscuity and a disproportionate percentage of sexually transmitted diseases.”

Irvine’s anti-LGBTQ ordinance violates both the Equal Protection Clause of the United States Constitution and California’s Unruh Civil Rights Act.

In Romer v. Evans, 517 U.S. 620 (1996), the U.S. Supreme Court ruled that the Equal Protection Clause of the Constitution prohibits a state from banning LGBTQ people from seeking “specific legal protection from injuries caused by discrimination.”

The facts of Romer v. Evans are as follows: after various cities and counties in Colorado enacted laws prohibiting discrimination based on sexual orientation, the State of Colorado, through a ballot initiative, amended its state constitution to “prohibit[] all legislative, executive or judicial action at any level of state or local government designed to protect . . . homosexual persons or gays and lesbians.”  As the Supreme Court explained, under the amendment, “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.”

The Supreme Court declared that the Colorado constitutional amendment was based upon animosity toward homosexual people and lacked a rational relation to any legitimate governmental purpose.  Accordingly, the Court determined that Colorado’s constitutional amendment violated the Equal Protection Clause of the 5th Amendment of the U.S. Constitution, applicable to the states through the 14th Amendment.

Like the Colorado constitutional amendment that the Supreme Court invalidated in Romer v. Evans, Irvine’s anti-LGBTQ ordinance attempts to prohibit local government action “designed to protect . . . homosexual persons or gays and lesbians” [i.e., protects people based on “sexual orientation.”] and like the Colorado constitutional amendment invalidated in Romer v. Evans, Irvine’s anti-LGBTQ ordinance “withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination.” Accordingly, Romer v. Evans renders Irvine’s anti-LGBTQ ordinance unconstitutional.

Moreover, not only is Irvine’s anti-LGBTQ ordinance unconstitutional, it also clearly contradicts and is superseded by California’s Unruh Civil Rights Act, which explicitly prohibits discrimination against people based on “sexual orientation.”

Because state law supersedes any city law or local ordinance, the Unruh Civil Rights Act’s prohibition of discrimination on the basis of sexual orientation anywhere in California means that Irvine lacks the power to declare that “the City Council shall not enact any City policy, law or ordinance that: Uses sexual orientation, in whole or in part, as the basis for determining an unlawful discriminatory practice and/or establishes a penalty or civil remedy for such practice.”

We would like the see the eyes of the world on Irvine. 

We believe that the three others on the Irvine City Council — Mayor Christina Shea and Councilmembers Anthony Kuo and Mike Carroll — are far more likely to vote to repeal and remove this cruel and unconstitutional ordinance from the Municipal Code if they know that PEOPLE ARE WATCHING!

You can read more about the origins of this anti-LGBTQ ordinance — how it was promoted by (now Mayor) Christina Shea and her then-husband Michael Shea out of animosity and fear toward LBGTQ people and as a launching pad for their right-wing political careers — at Melissa Fox’s blog post HERE.

The Irvine City Attorney, who is an ally of Mayor Christina Shea, has stated that because this anti-LGBTQ ordinance was made law by a ballot initiative, it can only be repealed and removed by another ballot initiative. Our argument against this assertion is that this ordinance is clearly unconstitutional under many United States Supreme Court cases, as well as in violation of federal and state law; for this reason, it’s repeal and removal does not change the law in a way that requires another ballot measure.

In fact, the California Legislature dealt with this very issue in its repeal of the unconstitutional sections of Prop 187 by Senate Bill 396 (2014) by a majority vote of the Legislature without a vote of the entire electorate.  As the Judicial Committee of the California Senate noted, “Under existing law, California’s Constitution only authorizes the Legislature to amend or repeal initiative statutes by way of another statute that becomes effective only when approved by the electors –unless the initiative statute permits amendment or repeal without their approval. (Cal. Const., art. II, Sec. 10, subd. (c).) This bill [SB 396] seeks to repeal several state statutes implemented upon voter approval of Proposition 187, which generally prohibited the provision of various benefits to undocumented aliens. That proposition did not authorize the Legislature to amend or repeal its provisions without voter approval.”

Nevertheless, the Judicial Committee found that the Legislature had authority to repeal the unconstitutional sections of Prop 187 without a vote of the entire electorate. It reasoned that because the bill did not modify or repeal any provisions of Prop 187 except those that are unconstitutional and therefore unenforceable, it did not make any change in existing law. Accordingly, “SB 396 would not impermissibly repeal or amend the initiative; rather, it would merely update California statutes to accurately reflect current law.” The bill passed the Assembly and the Senate with only a single No vote.

The same circumstances exist here. Keeping this discriminatory language on the books, “causes confusion and harmful outcomes . . . [Therefore], it is fitting that [we] expressly acknowledge the detrimental impact of the discriminatory [language] by removing its stain from the state’s statutes.”  That is precisely what our City Council needs to do now, and what the precedent of SB 396 gives us clear authority to do: “expressly acknowledge the detrimental impact of the discriminatory [language of Sec. 3-5.501-503] by removing its stain from the [City’s Code.]”

In addition to being unconstitutional and in violation of superseding state laws, Irvine’s anti-LGBTQ ordinance is a cruel and embarrassing relic of a more prejudiced time.

Does Irvine want to remain on record as being one of the very few cities in America, and  indeed the world, that still officially discriminates against people based on their sexual orientation?  We hope not!

Please watch the Irvine City Council Meeting online on July 14.

Please ask your friends and family to watch.

And, crucially, LET THE IRVINE CITY COUNCIL KNOW THAT YOU’RE WATCHING THEM!

You can WATCH the meeting live on ICTV, Cox Communications local access channel 30, and AT&T U-verse channel 99, and livestreamed online at cityofirvine.org/ictv.

You can CONTACT the other three members of the Irvine City Council to tell them to REPEAL AND REMOVE IRVINE’S ANTI-LGBTQ ORDINANCE here:

Mayor Christina Shea:
christinashea@cityofirvine.org

Councilmember Anthony Kuo:
anthonykuo@cityofirvine.org

Councilmember Michael Carroll:
michaelcarroll@cityofirvine.org

You can SIGN OUR PETITION to Repeal and Remove Irvine’s Ant-LGBTQ Ordinance.

Please see our Facebook event page, hosted by Melissa Fox, Farrah N. Khan, Tammy Kim, and Lauren Johnson-Norris.

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Rally for Flying the Pride Flag in Irvine! Tues., June 23, 2020 Time: 3:30 pm at Irvine City Hall Plaza!

June is Pride Month, when the State of California, and nations and cities around the world, stand with the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community as they declare their pride in who they are and who they love.

Show your support for flying the Pride Flag in Irvine by joining Irvine City Councilmembers Melissa Fox and Farrah N. Khan at a Rally at City Hall before Tuesday’s Irvine City Council Meeting! 

What: Rally for Flying the Pride Flag in Irvine
Where: Irvine City Hall, 1 Civic Center Plaza
Date: Tues., June 23, 2020
Time: 3:30 p.m. 

Click here to see the Facebook event page for the Rally.

Remember face coverings and social distancing is legally required in Irvine! Let’s keep each other safe while we make the world a better place!

Please also show your support for flying the Pride Flag in Irvine by contacting Mayor Christina Shea and the Irvine City Council to let them know. We need only one more vote! Contact the Irvine City Council: https://www.cityofirvine.org/city-council/contact-council

Note: At the following meeting on July 14th, we will be urging the Irvine City to repeal and remove its unconstitutional and cruel anti-LGBTQ ordinance!
https://melissafoxblog.com/2020/06/14/irvine-should-repeal-its-anti-lgbtq-ordinance-now/

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Irvine Should Repeal Its Anti-LGBTQ Ordinance Now!

At the Tues., July 14, 2020, Irvine City Council meeting, I will move to repeal Irvine’s anti-LGBTQ ordinance [Sec. 3-5-501 through 503] as unconstitutional under the Equal Protection Clause of the United States Constitution and in violation of California’s Unruh Civil Rights Act, which explicitly prohibits discrimination against people based on “sexual orientation.”

Councilmember Farrah Khan has agreed to join me in putting this item on the July 14 Council agenda and in supporting this motion.

Most residents of Irvine do not know that our diverse and forward-thinking city has an ordinance on the books that specifically and explicitly denies anti-discrimination protection to people based on their sexual orientation.

In fact, most residents are shocked when they learn that the Irvine Municipal Code includes the following:

“Sec. 3-5-503. – City Council parameters.

Except as provided in section 3-5-502, the City Council shall not enact any City policy, law or ordinance that:

A.  Defines sexual orientation as a fundamental human right.

B.  Uses sexual orientation, in whole or in part, as the basis for determining an unlawful discriminatory practice and/or establishes a penalty or civil remedy for such practice.

C.  Provides preferential treatment or affirmative action for any person on the basis of their sexual orientation.”

These provisions were added by Ord. No. 89-1, which was adopted as Measure N by 53% of the voters as an initiative on Nov. 7, 1989, overturning an Irvine Human Rights Ordinance enacted by the Council in July 1988 that prohibited discrimination based on sexual orientation.

The main proponent of the Measure N ballot initiative and the subsequent anti-LGBTQ ordinance was a group calling itself the “Irvine Values Coalition,” led by carwash-developer Michael Shea and his then-wife (and later Irvine mayor) Christina Shea.

According to Christina Shea, the initiative was needed because the earlier Human Rights ordinance gave “special legislative protection to the homosexual, bisexual and lesbian communities” and “homosexuality is characterized by a wide range of sexual perversions, varying degrees of promiscuity and a disproportionate percentage of sexually transmitted diseases.”

This anti-LGBTQ ordinance violates both the Equal Protection Clause of the United States Constitution and California’s Unruh Civil Rights Act.

In Romer v. Evans, 517 U.S. 620 (1996), the U.S. Supreme Court ruled that the Equal Protection Clause of the Constitution prohibits a state from banning LGBTQ people from seeking “specific legal protection from injuries caused by discrimination.”

The facts of Romer v. Evans are as follows: after various cities and counties in Colorado enacted laws prohibiting discrimination based on sexual orientation, the State of Colorado, through a ballot initiative, amended its state constitution to “prohibit[] all legislative, executive or judicial action at any level of state or local government designed to protect . . . homosexual persons or gays and lesbians.”  As the Supreme Court explained, under the amendment, “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.”

The Supreme Court declared that the Colorado constitutional amendment was based upon animosity toward homosexual people and lacked a rational relation to any legitimate governmental purpose.  Accordingly, the Court determined that Colorado’s constitutional amendment violated the Equal Protection Clause of the 5th Amendment of the U.S. Constitution, applicable to the states through the 14th Amendment.

Like the Colorado constitutional amendment that the Supreme Court invalidated in Romer v. Evans, Irvine’s anti-LGBTQ ordinance attempts to prohibit local government action “designed to protect . . . homosexual persons or gays and lesbians” [i.e., protects people based on “sexual orientation.”] and like the Colorado constitutional amendment invalidated in Romer v. Evans, Irvine’s anti-LGBTQ ordinance “withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination.”

Accordingly, Romer v. Evans renders Irvine’s anti-LGBTQ ordinance unconstitutional.

Moreover, not only is Irvine’s anti-LGBTQ ordinance unconstitutional, it also clearly contradicts and is superseded by California’s Unruh Civil Rights Act, which explicitly prohibits discrimination against people based on “sexual orientation.”

Because state law supersedes any city law or local ordinance, the Unruh Civil Rights Act’s prohibition of discrimination on the basis of sexual orientation anywhere in California means that Irvine lacks the power to declare that “the City Council shall not enact any City policy, law or ordinance that: Uses sexual orientation, in whole or in part, as the basis for determining an unlawful discriminatory practice and/or establishes a penalty or civil remedy for such practice.”

Irvine anti-LBGTQ initiative was one of several ballot measures across the nation in the late 1980s and early 1990s not only to seek to repeal existing anti-discrimination ordinances, but to proactively prohibit any local unit of government from ever passing such ordinances in the future.

Hence, the Irvine anti-LGBTQ ordinance includes provisions that purport to make it extremely difficult for a future Irvine City Council  to repeal it.  According to the ordinance, “Any law or ordinance pertaining to Section 3-5-503 may only be enacted by obtaining the approval of a majority of the voters of the City of Irvine voting on the measure at a regular or special election. Such a measure may only be placed on the ballot by citizen’s initiative or a two-thirds majority vote by the City Council.” [Sec. 3-5-502.].

The Supreme Court in Romer v. Evans made clear that it is an unconstitutional violation of the Equal Protection Clause to single out LGBTQ people for special burdens. including burdening them with special difficulties in enacting anti-discriminatory laws.  According, it is clear that the procedural provisions of Irvine’s anti-LGBTQ ordinance — requiring a 2/3 vote of the Council and then a ballot initiative for repeal — is again a violation of the Equal Protection Clause of the 5th and 14th Amendments because it is designed to make passage of protections against discrimination based on sexual orientation especially burdensome and difficult.

The California Legislature dealt with this very issue in its repeal of the unconstitutional sections of Prop 187 by Senate Bill 396 (2014) by a majority vote of the Legislature without a vote of the entire electorate.

As the Judicial Committee of the California Senate noted, “Under existing law, California’s Constitution only authorizes the Legislature to amend or repeal initiative statutes by way of another statute that becomes effective only when approved by the electors –unless the initiative statute permits amendment or repeal without their approval. (Cal. Const., art. II, Sec. 10, subd. (c).) This bill [SB 396] seeks to repeal several state statutes implemented upon voter approval of Proposition 187, which generally prohibited the provision of various benefits to undocumented aliens. That proposition did not authorize the Legislature to amend or repeal its provisions without voter approval.”

Nevertheless, the Judicial Committee found that the Legislature had authority to repeal the unconstitutional sections of Prop 187 without a vote of the entire electorate. It reasoned that because the bill did not modify or repeal any provisions of Prop 187 except those that are unconstitutional and therefore unenforceable, it did not make any change in existing law. Accordingly, “SB 396 would not impermissibly repeal or amend the initiative; rather, it would merely update California statutes to accurately reflect current law.” The bill passed the Assembly and the Senate with only a single No vote.

The same circumstances exist here.

Like the parts of Prop 187 repealed by a simple majority vote of the Legislature in 2014, the anti-LGBTQ ordinance is unconstitutional and enforceable. Like the unconstitutional parts of Prop 187, although Irvine’s anti-LGBTQ ordinance is unconstitutional and unenforceable, its language remains on the books. Keeping this discriminatory language on the books, “causes confusion and harmful outcomes . . . [Therefore], it is fitting that [we] expressly acknowledge the detrimental impact of the discriminatory [language] by removing its stain from the state’s statutes.”

That is what our City Council needs to do now, and what the precedent of SB 396 gives us clear authority to do: “expressly acknowledge the detrimental impact of the discriminatory [language of Sec. 3-5.501-503] by removing its stain from the [City’s Code.]”

In addition to being unconstitutional and in violation of superseding state laws, Irvine’s anti-LGBTQ ordinance is a cruel and embarrassing relic of a more prejudiced time.

Does Irvine want to remain on record as being one of the very few cities in America, and  indeed the world, that still officially discriminates against people based on their sexual orientation?  I hope not.

For all of these reasons, I will move to repeal Irvine’s anti-LGBTQ ordinance.  

As noted above, Councilmember Farrah Khan has agreed to join me in putting this item on the next Council agenda for Tues., July 14, 2020, and in supporting this motion.

If you agree with us, please tell Mayor Christina Shea and the rest of the Irvine City Council that Irvine’s anti-LGBTQ ordinance [Sec. 3-5-501 through 503] needs to be repealed NOW.

Contact the Mayor and the Irvine City Council by email here.

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June is Pride Month: Support Flying the Pride Flag at Irvine City Hall!

June is Pride Month, when the State of California, and nations and cities around the world, stand with the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community as they declare their pride in who they are and who they love.

June holds historic significance for the LGBT community.  In 1969, the Stonewall Riots occurred in the New York City as a protest against the police department’s unfair targeting of the LGBT community. The Stonewall Riots led to political organizing that is considered to be the beginning of the modern LGBT civil rights movement. The following year, the first LGBT Pride Parade was held in New York City on the anniversary of the Stonewall Riots. Today, California has the largest LGBT population in the nation and is home to over forty LGBT Pride celebrations. 

As Governor Newsom stated recently in his Pride Month Proclamation, “The LGBTQ community has worked tirelessly for respect, equality and their very right to exist. Their battles have been fought in the courts, from marriage equality to demanding equal protection under the law.  While there has been remarkable progress towards acceptance and equality in recent years, members of the LGBTQ community in the United States and around the world still face an unacceptable level of discrimination and violence. This includes LGBTQ people who aren’t safe at home and those who do not have a home in which to stay.  We must push back against those who threaten the safety of LGBTQ Californians and challenge our progress. And we must continue to make the case that all human beings share something fundamental in common – all of us want to be loved, and all of us want to love. We cannot march in a parade this June, but we can and will stand with our LGBTQ family, friends and neighbors. Pride celebrations may look different this year, but in California, no matter the circumstances, we are proud to support our LGBTQ community’s right to live their lives out loud. As we celebrate Pride across the state, we must continue to demand equal rights for all to create a California for all.”

Last year, I asked the Irvine City Council to fly the Pride Flag from our Civic Center. In doing so, we would be joining many other cities, including Anaheim, Costa Mesa, Laguna Beach, and Fullerton, as well as the Orange County Fairgrounds, in flying the Pride Flag to recognize Pride Month by making it clear to all that our community is a place where LGBT people are visible, accepted, and welcome.

Unfortunately, although dozens of residents spoke at the meeting in support of flying the Pride Flag, the Council defeated the proposal and I was the only Councilmember to speak in favor of it. Councilmember Mike Carroll even called the Pride Flag “a spectacle of divisiveness.” 

In fact, in direct response to my motion to fly the Pride Flag, the Irvine City Council took the unprecedented step of voting to prohibit a council member from placing an item on the agenda without two other council members’ approval.  As the Orange County Register correctly stated in a powerful editorial opposing the Council’s action, “the transparent goal [was] to shut down the views of the political minority.”

Following the City Council’s rejection of my Pride Flag motion, I joined with numerous other Irvine residents in our own Pride Flag event in front of City Hall, celebrating LGBTQ Pride and diversity in Irvine.  I also placed a Pride Flag in front of my office at City Hall.

I said at the time that I had no intention of being silent.  Therefore, I will again bring a motion to the Irvine City Council to fly the Pride Flag from our Civic Center as a visible and prominent expression of our City’s commitment to equal rights for all and to ensure that our LGBTQ community can live their lives out loud.

Under the new rules imposed by the City Council majority in response to my Pride Flag motion last year, I asked Councilmember Farrah Khan to join me in placing this motion on the City Council agenda.  She told me she was working with other, Republican, councilmembers on a Pride-related agenda item.  When I asked her specifically whether the item included flying the Pride Flag, she did not respond.

I have now seen the agenda item, a proclamation, and it does not call for flying the Pride Flag from the Civic Center as a clear symbol of Irvine’s commitment. 

Accordingly, this year I will again bring a motion to fly the Pride Flag from our Irvine Civic Center.

Please show your support for flying the Pride Flag in Irvine by contacting Mayor Christina Shea and the Irvine City Council to let them know.  Click here for their email addresses.

Click here for a link to e-comment of the agenda item. Your comment is supposed to be read aloud by the clerk during the City Council meeting.

As Harvey Milk told us, “Hope will never be silent.”

UPDATE: Tues., June 9, 2020

I am deeply disappointed that no other member of the Council supported my motion to fly the Pride flag in Irvine during Pride. Not Mayor Christina Shea. Not Councilmembers Farrah Khan, Anthony Kuo, or Mike Carroll. What an embarrassment for our City.