The Esperanza Peace & Justice Center

Bárbara Renaud González

Free speech is
not popular in Texas. For a state that prides itself on individualism, the
Lone Star state is no place for the lone voice. But in San Antonio, where
cultural fusion is not the postcard-perfection of the Alamo that many tourists
happily visit, a renegade—and nationally prominent arts and cultural
organization—has challenged the city’s denial of its right to speak out. In a
landmark trial that some consider a “test case” for arts funding, the
Esperanza Center for Peace and Justice awaits a federal judge’s ruling that,
win or lose, they have vowed to take all the way to the Supreme Court.

“The Esperanza
has expressed, through its arts and cultural programs, viewpoints on a range
of controversial issues, including human rights, immigration, cultural
domination, women’s rights, lesbian and gay rights, language rights, etc.,”
says lead counsel and law professor Amy Kastely in explaining the lawsuit.
“And the First Amendment imposes an obligation of viewpoint neutrality that
city officials cannot single out one organization because of its viewpoint.”

Founded 13 years
ago, the Esperanza (hope and therefore, liberation, in this context), is a
woman-led, racially diverse organization dedicated to social and economic
justice—through the vehicles of art and culture. Its director, Graciela
Sanchez, is a Yale graduate from the barrios of San Antonio, who believes that
fighting for her right to be a lesbian is the same as fighting for bilingual
education or a living wage. “Our vision, our mission has always been about
giving voice to those who have never had a voice, or had less access to
one…and that includes Latinos, Latinas, African-American women, young
people, old people. And it includes lesbians and gays.”

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.

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.

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.

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

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

The Judge’s
decision is expected before spring.              Z