A lawsuit challenging Indiana’s controversial Religious Freedom Restoration Act will not proceed, for now, after the Indiana Court of Appeals declined to reverse summary judgment for four cities with nondiscrimination ordinances. The appellate panel found that the conservative organizations challenging the RFRA “fix” lacked standing to challenge the ordinances on free speech and religious exercise grounds.
Judge Robert Altice wrote for the unanimous appellate panel Thursday in Indiana Family Institute Inc., et al. v. City of Carmel, et al., 19A-MI-2991. The case was filed and appealed by the Indiana Family Institute, Indiana Family Action and the American Family Association, all of which advocate for traditional marriage and other conservative principles.
Represented by noted conservative lawyer Jim Bopp of Terre Haute, the three organizations sued the cities after the Indiana General Assembly amended RFRA to include a provision prohibiting discrimination based on certain protected classes, including sexual orientation and gender identity, with exceptions for churches and other nonprofits.
The plaintiffs argued they did not fall within those exceptions, so the so-called RFRA fix “grotesquely” stripped them of their right to use RFRA as a defense to nondiscrimination ordinances in Bloomington, Carmel, Columbus and Indianapolis. The plaintiffs said they do not allow known same-sex couples to participate in their programming, so under the ordinances, they could not offer programming in the four defendant cities.
The three organizations prevailed on a standing argument back in 2016, when the Hamilton Superior Court denied a motion to dismiss under Trial Rule 12(B)(6). The Court of Appeals declined to review that decision.
The case was back in the trial court on motions for summary judgment and dismissal last October, and Judge Michael A. Casati subsequently granted summary judgment to the four cities, finding the plaintiffs lacked standing. He also declined to take judicial notice of magazine and newspaper articles about RFRA and a related letter signed by several law professors.
The plaintiffs appealed but fared no better in the Court of Appeals, which noted that according to the companies’ own evidence, no participant has ever actually been excluded from its programming.
“Moreover, the Companies cannot point to any exclusion policies that were in place and … there were no inquiries about the attendees’ religious beliefs or views on human sexuality prior to admission at the events. In fact, the Companies emphasized that all individuals are welcome to attend their programs, and only those who are disruptive or ‘actively advocate’ against the issues the Companies support are subject to exclusion,” Altice wrote. “The Companies do not require event attendees to share the same religious beliefs, and the Companies’ own designated evidence demonstrates that they have permitted ‘many gay people’ to attend their programs. In fact, the companies ‘want people who don’t agree’ with their religious views to attend their events and hear their pro-traditional-family message.”
What’s more, Altice said, the companies have not been subject to a discrimination complaint or investigation, nor have they been threatened with sanctions or penalties. They’ve also continued to hold programming in the defendant cities, and that programming has not been altered.
“In short,” the judge wrote, “the Companies remain free, without interference, to express their religious views on marriage and human sexuality as they always have.”
The appellate panel likewise rejected IFI, IFA and AFA’s argument of constitutional violations related to future events they might hold in the four cities. Altice called their plans for future events “wholly speculative and hypothetical.”
The panel also did not accept the plaintiff-appellants’ claim under the public standing doctrine, finding no public right at issue.
In a footnote, the panel declined to address the companies’ arguments regarding judicial notice.
“We need not address those arguments, inasmuch as the evidentiary rulings that the Companies challenge address the merits of their contentions, and the trial court’s decision to deny the Companies’ request to take judicial notice of that material has no bearing on the threshold question of standing,” Altice wrote.