Conservative Christians are seeking a way, through the courts, to challenge non-discrimination laws that protect LGBT citizens in public accommodations, employment and housing. Litigation in Indiana has potential national consequences if it is successful and if it could be replicated.
Represented by James Bopp, Indiana Family Institute, Indiana Family Action (the political arm of IFI), and American Family Association of Indiana filed a lawsuit on December 10 challenging the constitutionality of last spring’s Religious Freedom Restoration Act fix1. More troubling is that they are seeking to invalidate municipal non-discrimination ordinances in Indianapolis-Marion County and the City of Carmel.
I wrote about the original legislation in March. Its very purpose was to invalidate municipal non-discrimination ordinances and to make discrimination legal. It was a reaction to state court-ordered marriage equality prior to the Supreme Court’s ruling in Obergefell.What the original bill tried to do was to make religious belief an affirmative defense against charges of discrimination.
The essence of the 42 page complaint is that these laws favor some religions will disfavoring others. Bopp asserts that the government is pitting religious groups against each other because some accept same-sex marriage while others do not. The complaint focuses on the employment practices of the three organizations who want the ability to discriminate in hiring. The effect is on the bill in its entirety.
Bopp is very good but very expensive which raises questions that are unanswerable. Who is paying for this? In 2013 Indiana Family Institute had a budget of $450K and ended the year with a meager $19K net asset surplus. AFA, Indiana is about one-third that size. Indiana Family Action (IFI’s political arm) had a budget of $36K and did not break even by about $3K.
As for the claim itself I would offer the following observation: Family Research Council doesn’t seem to be besieged by gays who were denied employment in either Colorado or Washington, DC. Colorado and the District of Columbia protect sexual orientation and identity. As for pitting religious groups against each other, that is nonsense because Indiana’s current law does not regulate either belief or exercise of religion. Bopp further asserts that equal protection for the religious-free-exercise of all persons is being infringed upon.
Ultimately, Bopp seeks a religious exemption to otherwise valid law. The Supreme Court, in Employment Division v. Smitt, has said that such exemptions make laws entirely unenforceable. Justice Scalia wrote that opinion. The federal RFRA was a response to that decision and the Court had no problem providing a religious exemption in the Hobby Lobby case. There are differences but the Court seems to be weighing who wins and who loses as part of the process
This matter is before the Hamilton County Indiana Superior Court. Unlike the federal courts there is no electronic document access. We will need to rely on local organizations to keep us up to date on filings and the docket.
1 The legislature added the following to the bill in order to remove what amounted to a license to discriminate:
This chapter does not:
(1) authorize a provider to refuse to offer or provide services,
facilities, use of public accommodations, goods, employment,
or housing to any member or members of the general public
on the basis of race, color, religion, ancestry, age, national
origin, disability, sex, sexual orientation, gender identity, or
United States military service;
(2) establish a defense to a civil action or criminal prosecution
for refusal by a provider to offer or provide services, facilities,
use of public accommodations, goods, employment, orhousing
to any member or members of the general public on the basis
of race, color, religion, ancestry, age, national origin,
disability, sex, sexual orientation, gender identity, or United
States military service; or
(3) negate any rights available under the Constitution of the State of Indiana.