EL PASO -- A kiss between two men that got them and three friends thrown out of a Chico's Tacos restaurant has become the backdrop of a citywide debate on gay rights.
National news outlets, civil-rights lawyers from El Paso to Austin, El Paso Police Chief Greg Allen and City Council representatives all chimed in on the Chico's five.
The men, all gay, were at the Chico's Tacos on Montwood on June 29 when a contracted security guard saw two of them kiss, then used a pejorative before forcing them to leave, said Carlos Diaz de Leon, one of the five.
Diaz de Leon said police exacerbated the conflict when they arrived and threatened to charge the men with a state statute prohibiting homosexual conduct, even though the law was declared unconstitutional years ago.
Making matters worse, an El Paso police spokesman later said the restaurant can refuse service to anyone and the men could have been charged with criminal trespass.
After prompting from his lawyer and former Police Chief Richard Wiles, Diaz de Leon on Thursday submitted a complaint to the El Paso Police Department's Internal Affairs Division. Police, meanwhile, have admitted handling the situation poorly. The restaurant owners and security company, All American International Security, have remained silent.Diaz de Leon continues to contend that he and his friends did nothing wrong and were the victims of discrimination. Diaz de Leon, 31, said the men were not drinking to excess, were not behaving badly and were quiet and mild-mannered while they were at the restaurant.
"I was ordering at the cashier and I turned back to see if the other guys wanted to get something for themselves when I noticed two guys give each other a kiss on the lips, kind of like when you kiss someone on the cheek," Diaz de Leon said.
By the time the men sat down and began eating, they were approached by the guard, who said, "Si seguian con sus payasadas, los vamos a sacar de aqui, no permitimos que anden haciendo cosas aqui de jotos. (If you keep clowning around, we are going to get you out of here. We don't permit doing gay things here)," according to the complaint.
The men were told to leave by restaurant security guards as several people, including one of the guards, called police. An officer arrived about an hour later and told the men it was illegal for them to kiss in public, citing the Texas law on homosexual conduct the U.S. Supreme Court ruled unconstitutional in 2003.
Diaz de Leon's four companions, including the two men who kissed, have yet to come forward with their own accounts. Diaz de Leon said the four other men, all professionals, feared making a public issue of the situation because it could be damaging to their careers.
"They have jobs and work," he said. "They don't want to get harassed."
Word of the altercation between the gay men and the security guard spread quickly through El Paso. A text-message and e-mail campaign on Thursday urged people in the gay community and others to participate in a peaceful protest at 5 p.m. today in front of the Chico's on Montwood. Thursday night, about 35 people protested outside the Chico's Tacos. Several held signs that read, "Equal rights," and "I want to kiss in public" and "It was only a kiss."
At City Hall, a budget hearing for the Police Department veered off topic when City Council representatives made pointed queries to Chief Allen. City representatives said they were unhappy with the department's handling of the situation.
Allen responded that one of the two officers sent to the restaurant was not very experienced, but he promised to look into better police training. Allen also released a statement late Thursday that said police officials made incorrect statements about the law and that local government has a responsibility to ensure that people are served without fear of discrimination.
"We will be looking at (diversity issues) in roll-call training," Allen said at City Hall. "... The department will not tolerate any discrimination based on sexual orientation, race or anything else."
West-Central city Rep. Susie Byrd and Eastridge/Mid-Valley city Rep. Steve Ortega said they were troubled not only by the incident itself but also the response by the police spokesman that the restaurant had a right to refuse service to anyone.
"That's highly incorrect," Ortega said.
Lisa Graybill, legal director of the ACLU of Texas, said a 2001 U.S. Supreme Court case determined that places of public accommodation cannot refuse to serve someone based purely on discrimination and must establish a reasonable basis for turning someone away.
Gay men and women have an additional protection in El Paso, where in 2003 the City Council adopted an ordinance that prohibits restaurants and other businesses from discriminating based on sexual orientation, she said.
Diaz de Leon has been working with lawyer Bill Ellis, a gay-rights advocate and civil-rights lawyer who at times has represented police unions in El Paso. Lawyers with the ACLU in El Paso and Austin on Thursday began legal research and expressed an interest in speaking with the five men to determine whether the police or employees at Chico's Tacos or the security firm violated anyone's rights.
"We're extremely concerned that the actions of the restaurant employees, and the El Paso police may have violated the law," said Graybill. "The city of El Paso prohibits restaurants from refusing service to anyone based on their sexual orientation, and the police should have enforced that ordinance just as they would if the restaurant ejected two African-Americans simply because of their race, or two Catholics because of their religion."
Federal public accommodation laws which prohibit discrimination, and their local counterparts that extend rights to groups beyond race, religion and nationality, came at a time when signs that said "No Mexicans, no dogs" were common in restaurants and other public establishments in West Texas, Graybill said.
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