Tension is mounting in this country between local governments that are taking their cues from the “faith-based” feds, and a take-no-prisoners arts community that refuses to sacrifice its creativity on the altar of theocracy. The tension was front-page news in 1999 when Rudolph Giuliani, New York City’s congenitally crabby mayor, threatened to evict the Brooklyn Museum because it exhibited a painting of the Virgin Mary ornamented with elephant dung.
But those same forces were already duking it out in the cultural and political mlange of soulful San Antonio, Texas. This spring, a spirited court battle between a nonprofit arts and cultural group called the Esperanza Peace and Justice Center and the city of San Antonio was finally decided. With the resolution of the dispute, which pitted the First Amendment against reactionary local officials, art trumped government.
The Esperanza—which means hope—was founded in 1987 by a group of progressive Latinas whose mission was to challenge injustice through the vehicles of art and culture. It espouses, among other things, lesbian and gay rights, labor rights, environmental justice, and women’s rights.
As a media consultant for the Esperanza, I know that when any group flaunts the incendiary words “peace” and “justice,” rumblings from the right cannot be far behind. Promoting anything connected to lesbian and gay culture can also spell trouble for arts organizations funded by reactionary city governments. In 1997, when Mayor Howard Peak and the San Antonio City Council eliminated the Esperanza’s $62,500 funding, the organization assumed that the city’s action was linked to the group’s sponsorship of a gay and lesbian film festival called “Out at the Movies.” Though conservative forces had been gunning for the group for several years, supporters believed that it was the right’s vocal opposition to this event that prompted the city council to pull the plug on the center’s funding. The festival so inflamed local Christian talk show host Adam McManus, he orchestrated a letter-writing and telephone campaign against the Esperanza. San Antonio Express-News artist Leo Garza, meanwhile, penned a week’s worth of homophobic cartoons villifying the center.
Enter Amy Kastely. A law professor and former Esperanza board member, Kastely organized a team of seven women lawyers who worked pro bono to file a lawsuit against the city of San Antonio in 1998. Kastely’s First Amendment case was based on the Supreme Court decision in Finley (as in Karen) v. NEA, which ruled that governments cannot discriminate against groups that promote “disfavored viewpoints.”
Says Kastely: “Everybody agrees they can pick and choose depending on artistic excellence… The difference in this case is they refused to fund the Esperanza because of its involvement in social justice issues, and because it supported lesbian and gay cultural expression.”
The Esperanza also alleged that the city council sought to “appease public animus” by defunding the group after the homophobic campaign was launched. This, their lawyers said, violated the group’s Fourteenth Amendment right to equal protection. In conspiring to defund the organization in a backdoor meeting out of public view, the Esperanza charged that the city council also violated the Texas Open Meetings Act. Later, a fourth charge was added: the center claimed its First Amendment right to petition had been violated when the city council denied funding for the following year, allegedly in retaliation for the Esperanza lawsuit.
Kastely was convinced that the Esperanza had a strong case. Three years after they filed suit, Federal District Court Judge Orlando L. Garcia agreed. In a ruling handed down on May 15, Garcia said, “Once a governing body chooses to fund art, the Consti