The Journal Gazette
Thursday, November 03, 2016 3:32 pm

Groups sue cities over religious freedom

Niki Kelly | The Journal Gazette

NOBLESVILLE – Two faith-based groups argued Wednesday in a Hamilton County courtroom that anti-discrimination ordinances in four cities "chill" their activities and could "destroy their organization."

But lawyers for the cities say the groups aren’t even governed by the regulations, which protect the rights of LGBT Hoosiers and haven’t been affected or harmed in any way.

If a judge agrees, that would kill the lawsuit, whose aim is to undo a revision that state legislators passed in 2015 that tempered the Religious Freedom Restoration Act.

"The plaintiffs are trying to find a way so hard to get into court," said Pam Schneeman, who argued on behalf of the city of Indianapolis.

Alex Whitted, lawyer for the city of Columbus, said he has never had a case where someone is "contorting themselves" to be covered by a law while the city is saying they are not.

Two of the four ordinances – Indianapolis and Bloomington – have been on the books for years, while Columbus and Carmel added theirs more recently. Fort Wayne also has a human rights ordinance but wasn’t named in the suit.

But all such local ordinances could be invalidated if widely known Republican attorney Jim Bopp wins the case.

"It is no comfort to the plaintiffs that counsel tells us not to worry," Bopp said. "That is not legally binding."

He added that the groups should not have to wait until they have been threatened with an enforcement action to challenge the ordinances.

Hamilton Superior Court Judge Steve Nation will rule in the coming weeks.

The Indiana Family Institute and American Family Association of Indiana filed the lawsuit last December challenging the revision to the Religious Freedom Restoration Act, as well as the constitutionality of local civil rights ordinances that protect LGBT Hoosiers from employment, housing and public accommodations discrimination.

RFRA essentially calls for judges to use a higher level of scrutiny when evaluating whether a law or regulation improperly curtails a person’s religious liberty.

But its passage in 2015 caused a national uproar, as many believed it was meant to legalize discrimination against lesbian, gay, bisexual and transgender people in the name of protecting religious belief. A prime example would be allowing bakers or photographers to refuse services for same-sex weddings.

So lawmakers crafted a revision that said RFRA couldn’t be used to justify denying housing, jobs or services related to sexual orientation or gender identity.

Attorneys for the four cities agreed that the case shouldn’t even proceed to a discussion of whether the RFRA revision or the ordinances are constitutional. That’s because the nonprofit organizations that are suing are political advocacy interest groups, which is not the same as, for example, an ice cream parlor offering goods and services.

Also, the groups don’t have at least six employees, which is required for the employment provisions to apply.

Libby Goodknight, representing the city of Carmel, said five years of tax returns show the groups have had no more than two employees.

But Bopp said in court that the Indiana Family Institute now has five employees and deliberately hasn’t hired a sixth person to avoid invoking the ordinance. He said the organizations would not hire anyone who disagrees with the biblical teachings against homosexuality and same-sex marriage.

"They stand here right this second stripped of the heightened legal standard afforded by RFRA," Bopp said.

He also claims the groups are affected because they offer programs to the general public. One is a now-defunct program with no funding and the other is a leadership program with application requirements and fees.

Attorneys for the cities say those are specialized programs, which is not the same as offering goods or services to the general public.

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