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3 conservative groups challenge RFRA ‘fix,’ human rights ordinances

November 16, 2016

After a nearly 4½-hour hearing during which they argued the constitutionality of their local human rights ordinances prohibiting discrimination on the basis of sexual orientation, four Indiana cities are waiting to learn if a Hamilton Superior Court judge will dismiss a suit challenging the ordinances.

Counsel for the cities of Bloomington, Carmel, Columbus and Indianapolis argued before Judge Steven Nation Nov. 2 that three conservative family values organizations — Indiana Family Institute, Indiana Family Action Inc. and American Family Association — have no legal standing to challenge the cities’ human rights ordinances because those ordinances have not infringed upon the organizations’ religious liberties.

Terre Haute attorney James Bopp of the Bopp Law Firm brought the action on behalf of the plaintiffs in 2015. Bopp argued that because each city’s ordinance prohibits discrimination on the basis of sexual orientation, the three organizations have been unconstitutionally chilled from holding events in those cities because their events advocate for traditional marriage.

But counsel for the cities fought that notion, saying that because the family values organizations had not actually been harmed by the human rights ordinances, the case was based purely on hypothetical situations, not facts. Thus, the lawsuit could not be ripe for judgment, the attorneys said, and, further, the organizations do not have any legal standing to bring the action in court.

“(The case) is heavy on the law, light on the facts,” said Libby Goodknight, attorney for the city of Carmel.

Bopp’s argument before Nation specifically took aim at the “fix” to the 2015 Religious Freedom Restoration Act, a controversial piece of legislation that, in its original form, was designed as a protection for private individuals who believed the government was placing a “substantial burden” on the free exercise of their religious liberties, Bopp said.

After widespread backlash from critics who believed RFRA had essentially legalized discrimination against the LGBT community on the grounds of religious freedom, Gov. Mike Pence signed the Legislature’s “fix,” which prohibits LGBT discrimination unless a private individual or organization is affiliated with a church or is a clergy member.

The RFRA fix is unconstitutional, Bopp said, because it would substantially burden the plaintiffs’ religious liberties by forcing them to welcome same-sex couples and supporters into their events that advocate for traditional marriage.

But counsel for each of the defendant cities brought the same response before the judge — the three organizations had not yet been burdened by the ordinances, so they have no legal standing to raise their argument in court.

Goodknight, who delivered the longest and most encompassing argument for dismissal, told Nation that IFI and IFA had based their claims against the city of Carmel on situations that had not yet happened and that were not likely to happen in the future. AFA did not bring a complaint against the northern Indianapolis suburb.

IFI, which Bopp said is based in Carmel, claimed that it could not provide programs to the general public in Carmel because it would be required to include same-sex marriage advocates in their biblically based family values programs. The claim specifically referenced two IFI programs — Hoosier Commitment and the Hoosier Leadership Series.

But IFI offers neither of those programs to the general public, Goodknight said, so the organization’s argument that its desire to do so is chilled by the city’s ordinance is invalid.

Hoosier Commitment was an organization designed to train parents to raise their children with traditional family values, but is now defunct due to a lack of funding. If a program is defunct, Goodknight said, it cannot be substantially burdened by any sort of ordinance or mandate.

Further, when Hoosier Commitment was operational, it was geared toward low-income families and those with at least one parent in jail, so Goodknight said it was never designed to serve the general public. Similarly, participants in the Hoosier Leadership Series are selected through a highly competitive process that is designed to vet the state’s most prominent up-and-coming conservative leaders.

IFA, which is known as the advocacy arm of IFI, argued in its complaint against Carmel that it had plans to increase its number of employees from one or two workers to six, but is choosing not to do so because employing six people in the state of Indiana would trigger the LGBT employment protections in the Carmel city ordinance.

But Goodknight argued once again that there were no facts to prove that IFA had been chilled from hiring more employees by the Carmel ordinance.

Similarly, Pam Schneeman, counsel for the city of Indianapolis, told Nation that IFI and AFA — not IFA, which did not challenge the capital city’s ordinance — had not brought any factual claims against the city, but merely hypothetical or possible situations that, if they were to occur, could substantially burden their religious liberties.

On that basis, Schneeman said the case is not ripe for judgment because there is nothing to judge, and repeated Goodknight’s assertion that the plaintiffs also lack standing to pursue the case.

Thomas Cameron and Alan Whitted, attorneys for the cities of Bloomington and Columbus, respectively, also pointed out that none of the three plaintiffs had ever hosted an event in either of their cities, but had only listed their intent to do so in the court filings.

Bopp once again returned to his chilling argument, telling Nation that the three groups would like to host events in the two southern Indiana cities but cannot as long as the ordinances are in effect, a situation he said is the equivalent of an unconstitutional chill.

But Cameron and Whitted argued that they did not believe their ordinances applied to the three conservative groups at all because the ordinances provide protections based on sexual orientation, not beliefs about sexual orientation. Bopp said such an assertion offered little comfort because it is not legally binding.

Throughout the arguments, Bopp repeatedly said that although IFI, IFA and AFA’s events are generally open to the public, the organizations would exclude someone from participating if they knew that person was a same-sex marriage proponent. But under the ordinances of the four cities, such exclusion would not be allowed, and with the RFRA fix in place, the conservative values groups have no legal protections for their religious freedom, he said.

The case is Indiana Family Institute Inc., et al. v. City of Carmel, et al., 29D01-1512-MI-010207.•

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