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Thursday, November 03, 2016

Ind. Courts - "Does conservatives' case against RFRA fix belong in court?"

Updating this ILB post from Monday, re Hamilton Co. judge to hear conservatives' lawsuit challenging RFRA fix, several Indiana papers have lengthy reports today on the challenge. Nink Kelly of the Fort Wayne Journal Gazette has this story - some quotes:

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. * * *

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.

Megan Banta's story in the $$$ Bloomington Herald-Times begins with a big photo of Jim Bopp, captioned "Jim Bopp, a conservative attorney from Terre Haute, is representing groups in arguing that their religious convictions should outweigh local LGBT rights protections." Some quotes:
Bloomington and the other cities are arguing that the conservative groups have neither a ripe claim nor the standing needed to bring the case against the human rights ordinances.

Thomas Cameron, an assistant city attorney for Bloomington, said the plaintiffs’ legal complaint is based only on abstract possibilities.

The groups argue in a pre-enforcement challenge that the city’s ordinance is preventing them from offering programs in Bloomington because they would exclude people who don’t share their beliefs about traditional marriage.

But although the groups all were founded in 2005 or earlier, none of them ever has held an event in Bloomington, Cameron said. The groups merely state in legal briefs that they intend to.

Cameron added that while the groups claim their events and programs would run afoul of the city’s ordinance, there are several steps necessary for the city’s human rights commission to be able to determine there has been a violation and potentially level consequences.

First, the groups would have to hold an event in Bloomington, which they only have asserted they would do.

Then, they would have to make the event open to the general public.

Cameron said at least one of the events the groups reference in legal briefs, the Hoosier Leadership series, is not open to the general public and therefore would not fall under the public accommodations portion of the ordinance, as the groups claim.

“Hoosier Leadership series is not an ice cream parlor,” he said. “It’s not something anyone can go to. It’s not something anyone can attend.”

Even if the groups were to hold the event, they would then have to actually turn someone away or exclude someone based on one of the protected classes in the ordinance, which does not include people with particular views on marriage, Cameron said. That person then would have to file a complaint.

That means the plaintiffs’ argument for standing requires the court to “make a series of presumptions and assumptions,” he said.

Cameron further argued that while the groups claim the ordinance has chilled the free practice of their beliefs, that chill is subjective because there is no threat of prosecution, the law is not aimed at the groups and there is no history of enforcement.

Attorneys for the other cities named in the suit argued largely along those same lines, all citing “ripeness” and “standing” in their request for Superior Court Judge Steven Nation to dismiss the case.

“They’re based on speculations and abstract possibilities,” said Pam Schneeman, an attorney in the Indianapolis corporation counsel’s office. “This is too many ifs to afford ripeness and standing.”

Stephanie Wang reports this morning for the Indianapolis Star in a story that begins:
Attorneys for four Indiana cities argued Wednesday that two conservative groups should not be allowed to challenge civil rights protections based on "hypothetical controversies," noting some city protections for lesbian, gay, bisexual and transgender Hoosiers have been in effect for nearly a decade without being challenged.

Lawyers for two prominent conservative groups countered by saying that LGBT protections encroach on the religious freedom of evangelical Christians, but that they have declined for years to challenge the laws because of a chilling effect those laws have on them.

"We don't want people hiding in wait for us when we go to argue our faith-based principles," Terre Haute attorney Jim Bopp said of the conservative groups. "... Nobody wants to be confronted by the government under the penalties of potential fines."

The lawsuit — filed in Hamilton Superior Court by the Indiana Family Institute and the American Family Association of Indiana — represents a politically significant attempt to invalidate local nondiscrimination ordinances that include sexual orientation and gender identity as protected classes.

LGBT advocates are pushing to pass local measures after failing to win inclusion of LGBT rights in state civil rights law earlier this year. At least 18 municipalities across the state protect gays and lesbians against discrimination in housing, employment and public accommodations, with some also extending those protections to transgender people.

The lawsuit is also an effort to bring back the original Religious Freedom Restoration Act, without the "fix" that prevents the law from being used to discriminate against LGBT people.

The two groups are asking for the RFRA "fix" to be deemed unconstitutional, because they say it dismisses their beliefs on Biblical marriage and sexuality while defending religious liberty for other faiths.

In question Wednesday, however, wasn't RFRA or the validity of its "fix." It wasn't even about whether conservatives had a good argument to make for guarding religious freedom, or the cities for protecting minority groups. It was whether the case even belonged in court at all.

The cities of Indianapolis, Carmel, Bloomington and Columbus argued that the conservative groups had no standing to sue and could not demonstrate real or imminent harm. And they said the groups, each founded more than 20 years ago, have never before contested the 8-year-old Indianapolis ordinance or the even longer-standing Bloomington ordinance.

Posted by Marcia Oddi on November 3, 2016 09:36 AM
Posted to Indiana Courts | Indiana Government | Indiana Law