Groups argue RFRA fix infringes on religious rights

Nearly five years after Indiana’s controversial Religious Freedom Restoration Act was signed into law, a lawsuit alleging subsequent amendments to the act infringe on religious rights went before a Hamilton County judge Thursday.

Judge Michael Casati of Hamilton Superior Court 1 heard arguments Thursday morning on cross-motions for summary judgment and motions to dismiss the religious freedom litigation brought by the Indiana Family Institute, Indiana Family Action and the American Family Association of Indiana. The defendants are the cities of Bloomington, Carmel, Columbus and Indianapolis, all of which have enacted ordinances prohibiting discrimination based on certain protected classes, including sexual orientation and gender identity.

According to Jim Bopp – the prominent religious-freedom attorney based in Terre Haute who is representing the plaintiffs – the so-called RFRA fix “grotesquely” stripped the three organizations of their ability to use their religious beliefs as a basis to exclude people in same-sex relationships from their activities and employment.

When it was initially passed, RFRA prohibited the government from placing a “substantial burden” on the exercise of religion unless that burden passed strict scrutiny. After a wave of public outcry — including among legal professionals — the law was amended a week later to include a provision prohibiting discrimination based on certain protected classes, including sexual orientation and gender identity, with exceptions for churches and other nonprofits.

While pro-LGBT organizations took issue with the initial RFRA legislation, organizations supporting traditional marriage, including the plaintiffs, opposed the “fix,” saying it stripped them of the protections offered by RFRA. Arguing before Casati on Thursday morning, Bopp said the fix now means the three organizations he represents could not use RFRA as a defense against litigation brought by the four defendant cities.

Bopp told reporters after the hearing that his clients do not fall under the exceptions carved out by the amendment, and he told the judge it was “unprecedented” for the state to strip religious rights in this manner. He said the plaintiffs don’t want the court to completely strike the four municipal ordinances; they just want their religious rights to be afforded the same protections as other rights.

But the prevailing defense argument — presented by attorneys representing the four cities and the state, which intervened — was that IFI, IFA and AFA lack standing to bring the litigation.

The standing issue was previously addressed in 2016 when former Hamilton County Judge Steve Nation denied a motion to dismiss under Trial Rule 12(B)(6). The Indiana Court of Appeals declined to review Nation’s decision, and Bopp said nothing has changed since the 2016 ruling that would necessitate a revisiting of the standing issue.

But Jefferson Garn of the Indiana Attorney General’s Office said the case is in a different procedural posture now than it was in 2016, so the standing question is once again at issue. While the 2016 arguments focused on the four corners of the complaint, the case now includes depositions and affidavits that, according to the cities, undermine the plaintiffs’ standing.

Libby Goodknight, a Krieg DeVault partner representing Carmel, focused on deposition testimony from IFI President Curt Smith to challenge the plaintiffs’ standing. According to Smith’s deposition, as presented by Goodknight, IFI wants to educate everyone about its beliefs, including those who disagree with the organization’s stance on marriage. There’s no “test of faith” to get into an IFI, IFA or AFA event — only those who are disruptive or who actively work against the organizations are excluded.

Given that, attorneys from all four cities maintained the plaintiffs don’t have standing because they haven’t suffered any actual harm, and they’re not under any threat of harm or prosecution. If the organizations’ leaders admit they don’t keep gay people from their events, the defense said, then they aren’t violating the ordinances.

Bopp, however, drew a line between sexual orientation and same-sex relationships. IFI, IFA and AFA aren’t going to exclude someone because of their sexual orientation, but they would prohibit a person who is in a same-sex relationship, who engages in same-sex sexual activity or who is an advocate for same-sex relationships.

Bopp gave the example of a Catholic priest being forced to perform a same-sex marriage in violation of his religious beliefs. The protections the priest is hypothetically being denied would be more obvious if he were a Muslim restaurant owner being forced to sell pork, Bopp said.

But Larry Allen, the assistant city attorney in Bloomington, said the Catholic priest example was not on point with the ordinance because the priest would not be offering a public accommodation. The ordinance covers public accommodations to the “general public,” Allen said.

The plaintiffs have also raised a vagueness challenge against the ordinances, with Bopp telling reporters that “gender identity” language is the key issue in that claim. It would be difficult for anyone to know if a person has a gender identity that does not align with their biological gender, he said.

In addressing the vagueness argument on behalf of Bloomington, Allen said the ordinance is written in a manner that a person of reasonable intelligence could understand. Similarly, Alan Whitted and Daniyal Habib — representing Columbus and Indianapolis, respectively — said the as-applied vagueness challenge must fail because their ordinances have never been applied to the plaintiffs.

Asked how the plaintiffs could have standing given that they have not been prosecuted under the ordinances, Bopp told reporters that in his experience, defendants who are sued for violating religious rights won’t enforce ordinances or similar measures once litigation has been filed.

The defendants also noted IFI, IFA and AFA have not had to cancel events in their cities because of the ordinances, an argument against Bopp’s “chilling” claim. Some events have been discontinued due to lack of funding or resources, they said, but other events have regularly continued in Indianapolis.

The recent U.S. Supreme Court decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), also featured prominently during Thursday’s arguments.  The court in Masterpiece held that while LGBT people have constitutional protections, religious beliefs, including a belief in traditional marriage, are likewise protected.

Bopp pointed to that decision in support of the plaintiffs’ argument that the RFRA fix is “patently unconstitutional,” though the defendants said Masterpiece is distinguishable.

Casati noted at the outset of the hearing that some 300 pages of pleadings had been filed in the case only recently. He said he has begun working through those pleadings but needs to finish his review, so he took the matter under advisement after about 2½ hours of arguments.

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

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