During the July 14 Irvine City Council meeting, the council had to “call the question,” before voting unanimously to remove a three-decade-old anti-LGBTQ ordinance from the city’s municipal code.

The action was brought forth by Councilmember Melissa Fox, after she fielded hundreds of requests from residents asking for the removal of the anti-LGBTQ+ ordinance.

But, Irvine City Attorney Jeff Melching explained that while the anti-LGBTQ ordinance has been deemed “invalid and unenforceable” since 1995, the process to remove it from the municipal code is legally complex.

Melching said his job was to follow all of the laws, and presented his expertise on how to properly and legally remove the ordinance from the city code.

“What’s before us tonight is a motion — it’s not a resolution, which wouldn’t be adequate — and it’s not an ordinance which is the required device to remove anything from the municipal code,” Melching explained. “In this circumstance, because these provisions were put into the municipal code by a vote of the people, they can only be removed by a vote of the people.”

Melching pointed to language within the Elections Code 9217 that states if an ordinance is adopted by vote, it cannot be “repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance.”

Melching presented some examples of what actions the council could take to remove the ordinance.

In his presentation, Melching explained the history behind the ordinance dated back to 1989, when Irvine voters passed Measure N.

In the measure, Sec. 3-5-501 through 503 denies anti-discrimination protection based on sexual orientation under “City Policies On Sexual Orientation.” The ordinance reads, “The City Council shall not enact any City policy, law or ordinance that:

1. Defines sexual orientation as a fundamental human right.
2. 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.
3. Provides preferential treatment or affirmative action for any person on the basis of their sexual orientation.”

“I understand that these that these provisions in the Irvine municipal code are completely illegal. But, the legal questions for the city attorney is what’s the proper process — if there is a process — for removing those provision from the Irvine municipal code,” he said. “In my legal opinion, section 3-5-503 of the Irvine municipal code is unenforceable as it violates the Equal Protection Clause of the United States Constitution.”

The Irvine City Attorney the Supreme Court case, Romer vs. Evan’s which had legal precedents similar to what is included in the Irvine municipal code.

Melching referenced the 1995 Supreme Court case Romer v. Evans, which had legal precedents similar to what is included in the Irvine municipal code.

In the Romer v. Evans decision, the Supreme Court considered an amendment to the Colorado constitution when Colorado voted on a provision that was “substantively identical” to Irvine’s municipal code.

The Supreme Court later found that the Colorado provision was unenforceable, because it violated the Equal Protection Clause, but kept the provision. However, to address this, a note was made into the Colorado constitution to adjudicate the invalidity of the law.

While it may be hard to imagine an entity suing the city because Irvine failed to meet the complete legal framework to remove this from the code, Melching expressed his responsibility to explain what the law is.

After the presentation, the council expressed frustration. Councilmember Fox said she disagreed with the City Attorney’s analysis of the law.

“Who in their right mind is going to come sue us to put this racist, P.O.S. language back in our code?” Fox said. “Lets clean this up and move on.”

Irvine Vice Mayor Mike Carroll was the council person to call the question, and essentially force the council to vote on Councilmember Fox’s motion.

“I don’t understand what’s happening, this is a point of order, there’s a motion and a second — I’d like to call the question,” he said.

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