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Cities argue for dismissal of suit against human rights ordinances

November 3, 2016

During a nearly 4 ½-hour hearing in Hamilton Superior Court Wednesday, attorneys for the cities of Carmel, Indianapolis, Bloomington and Columbus argued before Judge Steven Nation that the lawsuit brought against their human rights ordinances should be dismissed because the case is not ripe for judgment and because the plaintiffs have no legal standing to bring the action.

Those plaintiffs, the Indiana Family Institute, its advocacy arm, Indiana Family Action Inc., and American Family Association, are conservative nonprofits that advocate for traditional marriage and family values. The three plaintiffs are suing the four cities after they passed protections in their human rights ordinances that prohibit discrimination on the basis of sexual orientation or gender identity with limited or no exceptions.

Jim Bopp of the Bopp Law Firm, Terre Haute, based his argument on behalf of the plaintiffs on the “fix” to the controversial Religious Freedom Restoration Act that was signed into law in the spring of 2015.

Under the original legislation, Bopp said RFRA was written as a defense for private individuals who believe the government was substantially burdening their right to religious freedom. But after widespread backlash about the law, Indiana legislators created a “fix,” which states that an employer or service provider cannot not discriminate against a potential customer or employee on the basis of sexual or gender identity, unless the service provider or employer is affiliated with a church or is a member of the clergy.

Bopp argued that the RFRA fix is unconstitutional and would substantially burden the three plaintiffs if they wanted to host an event centered in one of the four defendant cities. Further, Bopp told Nation that the family values organizations want to offer their programs in the four cities, but intentionally are not doing so because of fear of legal retribution, a fact Bopp said proved the cities were unconstitutionally chilling the nonprofits from doing their desired work.

But counsel for each of the defendants brought the same argument before the judge: that Bopp and the plaintiffs had based their case around hypothetical situations and not actual facts and, thus, did not present a case that was ripe for consideration. Additionally, because Bopp’s argument relied on hypotheticals and not an actual injury, the attorneys also said the plaintiffs had no legal standing to bring the case.

Libby Goodknight, counsel for the city of Carmel, took aim at IFI and IFA’s claims against the city. AFA did not bring a complaint against Carmel.

IFI’s claim, Goodknight said, was that it could not provide programs to the general public in Carmel because they would be required to include same-sex marriage advocates in their programming, which would substantially burden their desire to share their views of Biblically based family values.

But the two programs the plaintiffs want to offer in Carmel – Hoosier Commitment and the Hoosier Leadership Series – are not open to the public but instead are tailored at low-income families and burgeoning conservative leaders, Goodknight said, so the “general public” argument could not apply.

IFA argued that it would like to increase its staff to at least six people, but doing so would trigger the anti-discrimination protections under the Carmel ordinance. Because of that, IFA has intentionally not increased its staff, which Bopp said also constitutes a chill. But Goodknight told the judge that there was no indication that IFA had ever had or would likely need six employees in the future.

On behalf of Indianapolis, Pam Schneeman told Nation that IFI and AFA had brought no actual factual claims against the city, only hypothetical situations, so the case should be dismissed for lack of subject matter jurisdiction.

Thomas Cameron, assistant city attorney for Bloomington, and Alan Whitted, Columbus city attorney, each told the court that they did not believe their city ordinances applied to the work the plaintiffs want to do in their cities because the ordinances provide protections based on sexual orientation, not beliefs about sexual orientation. Further, the southern Indiana lawyers also pointed out that the plaintiffs had never held events in Bloomington or Columbus.

But just because the cities’ governments believe the ordinance does not apply to the plaintiffs now does not mean they can’t change their mind in the future, Bopp said.

Nation made no comment about his thoughts on the case during the hearing and did not provide a timeframe for when his decision would be made.
 

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