Of elephants, donkeys, and black sheep in their midst: state action doctrine thwarts Log Cabin Republicans' bid to gain a place in GOP's tent.

• Author: Hirczy de Mino, Wolfgang P.
• Position: Texas - State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication

Is a political party free to exclude groups and causes it does not want within its fold? In a recent decision, the Texas Supreme Court held that the exclusion of the Log Cabin Republicans, a group of gay and lesbian Republicans seeking acceptance within the Republican Party, from the Party's 1996 state convention was an internal party affair not reached by the Texas Bill of Rights.(1) Accordingly, the court rejected their free speech, equal rights, and due process of law claims.

In April of 1996 the Log Cabin Republicans of Texas applied for, and were granted, an exhibitor's booth and advertising space at the 1996 Republican Party of Texas Convention scheduled to start in June. The Log Cabin Republicans agreed to abide by the Republican Party's rules and regulations, one of which reserved "the right to restrict exhibits which, because of undue noise, method of operation, material, content, or any other reason, become objectionable."(2) When the Log Cabin Republicans submitted their advertisement, which asserted their belief that equal rights should be provided for gay and lesbian individuals, the Texas Republican Party's (Republican Party) Executive Director responded with a letter rejecting the ad and the booth request. The Party returned the $750 check and refunded the cost of the booth. The Log Cabin Republicans filed suit seeking injunctive relief and alleging that the Republican Party had violated their rights to free speech, equal rights, and due process of law under the Texas Constitution. The trial court issued a temporary injunction requiring the Republican Party to provide a booth and to print and insert in every Convention program an advertisement prepared by the Log Cabin Republicans. The Republican Party filed a motion seeking leave to file a petition for writ of mandamus in the Texas Supreme Court and an emergency motion to stay the temporary order. On June 18, 1996, two days before the Convention was to begin, the Texas Supreme Court requested an expedited response from Log Cabin Republican's and set oral argument for the next day. The court granted the emergency stay in a per curiam opinion, noting that it was "tentatively of the opinion that state action is required for there to have been a violation of the constitutional rights asserted by the Log Cabin Republicans and that such action was not present under the facts of this case."(3)

In February of 1997, the Texas Supreme Court handed down its explanation of why the Republican Party was entitled to extraordinary relief.(4) In an opinion by Justice Abbott, joined by seven justices, the court ruled that the trial court abused its discretion in granting the injunction. The court held that the stay order provided an adequate remedy for...