Four Indiana cities sued for enacting anti-discrimination ordinances that opponents alleged violated religious rights laws have won summary judgment in a lawsuit challenging Indiana’s controversial Religious Freedom Restoration Act.
Hamilton Superior Court 1 Judge Michael A. Casati granted summary judgment Thursday to Bloomington, Carmel, Columbus and Indianapolis in litigation brought by the Indiana Family Institute, Indiana Family Action and the American Family Association of Indiana. The three groups, which oppose same-sex marriage, had alleged that local ordinances prohibiting discrimination based on protected classes including sexual orientation and gender identity infringed on their religious rights.
But in declining to address the merits of those arguments, Casati said the plaintiffs lacked both standing and ripe claims.
“Accordingly, this Court cannot and does not address Plaintiffs’ claims asserted in their Second Amended Complaint filed November 29, 2016 challenging the legality and constitutionality of the local ordinances and state statutes at issue in this matter,” the judge wrote.
Underlying the case is Indiana’s RFRA law that garnered national attention in 2015.
The original text of the legislation prohibited the government from placing a “substantial burden” on the exercise of religion unless that burden passed strict scrutiny. But after an onslaught of public outcry—including among legal professionals—the law was amended to include a provision prohibiting discrimination based on certain protected classes, including sexual orientation and gender identity, with exceptions for churches and other not-for-profits.
It was this so-called RFRA “fix” that rankled IFI, IFA and AFA, prominent religious-freedom attorney Jim Bopp said at the Oct. 3 hearing in Casati’s court. The fix, Bopp said, “grotesquely” stripped the plaintiffs of their ability to use RFRA as a defense to the four cities’ ordinances.
Speaking with reporters after the court hearing, Bopp said his clients do not fall under the exceptions carved out by the RFRA amendment. Also, he said the “gender identity” language of the ordinances was unconstitutionally vague.
But attorneys for the four cities moved for summary judgment on grounds that the plaintiffs lacked standing.
Libby Goodknight, a Krieg DeVault partner representing Carmel, supported that theory with deposition testimony from Curt Smith, president of IFI. Smith testified that IFI wants to educate everyone about its beliefs, including those who disagree with them. Thus, there is 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 would be excluded.
Thus, the defense argued the plaintiffs have not suffered actual harm, and they are not under threat of harm or prosecution. What’s more, the cities said the organizations have not had to cancel events in the four municipalities because of the ordinances.
But Bopp drew a distinction between sexual orientation and same-sex relationships, saying those who are in a same-sex relationship, engage in same-sex sexual activity or who advocate for same-sex relationships would be excluded from an IFI, IFA or AFA event.
The plaintiffs had previously prevailed on a standing argument 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 that decision.
But in explaining why standing should once again be at issue, Jefferson Garn of the Office of the Attorney General—representing the state, which intervened—said in October the case is now in a different procedural posture than it was in 2016. Then, the court had only the four corners of the complaint to consider, Garn said, but the case now includes affidavits and depositions like that given by Smith.
Indiana Lawyer has reached out to Bopp for comment on Casatis’ ruling and on any plans to appeal. The grant of summary judgment to the defendants led the judge to vacate February trial dates.