RFRA ‘fix’ challenged in appellate briefs in lawsuit against city ordinances

Three traditional-marriage organizations challenging the amendment to Indiana’s controversial Religious Freedom Restoration Act are asking the Indiana Court of Appeals for relief, asserting they have standing to sue four cities that have enacted anti-discrimination ordinances.

The American Family Association of Indiana, Indiana Family Institute and Indiana Family Action are asking the appellate court to overturn a summary judgment ruling in favor of Bloomington, Carmel, Columbus and Indianapolis. Hamilton Superior Court 1 Judge Michael Casati granted the cities’ summary judgment motions in November, finding the three organizations did not have standing or ripe clams.

The groups sued in December 2015, less than a year after the Indiana General Assembly passed the controversial RFRA law. In its original form, RFRA prohibited the government from placing a “substantial burden” on the exercise of religion unless the burden could pass strict scrutiny.

But after a public outcry alleging efforts to discriminate against the LGBT community, the law was amended to include a provision prohibiting discrimination based on certain protected classes — notably, sexual orientation and gender identity — with exceptions for churches and other nonprofits.

It was the so-called RFRA “fix” that rankled IFI, IFA and AFA, represented in the case by prominent religious-freedom attorney Jim Bopp of Terre Haute. Arguing before Casati in October, Bopp said the amendment “grotesquely” stripped the plaintiffs of their ability to use RFRA as a defense to the four cities’ antidiscrimination ordinances.

Bopp is seeking to reinstate the organizations’ claims in two appellate briefs filed March 2. He argued on behalf of AFA, IFI and IFA — referred to in the briefs as “Advocates” — that the organizations have standing to challenge the fix and the four ordinances, which prohibit discrimination based on a variety of protected classes, including sexual orientation and gender identity.

Bopp’s arguments were based on the assertion that the three organizations were “stripped” of RFRA’s protections when the law was amended.

Before the amendment, Bopp said RFRA provided a “day in court” protection for allegations of a substantial burden on religious exercise for three categories: individuals, organizations operated primarily for religious purposes, and entities with practices compelled or limited by a system of religious belief. He referred to the third category as “Hobby-Lobby entities,” a reference to the decision in Burwell v. Hobby Lobby Stores, 572 U.S. 682 (2014).

AFA, IFI and IFA are Hobby-Lobby entities, Bopp argued, because while they are not affiliated with a church or other primarily religious organization, their views on marriage are compelled by a system of religious belief.

At issue are the organizations’ practices of excluding same-sex couples from their events. While Bopp said the organizations don’t discrimination based on sexual orientation alone, they will exclude people who are known to be in a same-sex marriage, practice same-sex activity or advocate for such activity.

According to the appellate briefs, the RFRA fix stripped Hobby-Lobby entities of the ability to use RFRA as a defense. But that defense, under the amendment, is still available to a “nonprofit religious organization or society” — an exception Bopp said his clients do not fall under.

Thus, if the four cities choose to enforce their antidiscrimination ordinances against AFA, IFI or IFA, the organizations could not use RFRA as a defense, Bopp argued. And because of the threat of the enforcement, he said his clients will not hold events in those cities as long as the ordinances are in effect, thus creating a chill.

The cities argued, and Casati agreed, that because the ordinances have not yet been enforced against Bopp’s clients, they do not have standing to bring their First Amendment claims.

But “the First Amendment requires that preenforcement challenges be permitted and recognizes standing and ripeness based on (i) the existence of an applicable statute and (ii) chilled speech,” Bopp wrote in the AFA brief. “For a preenforcement challenge, it is enough to ‘allege[] an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed …’ Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).”

In a separate but similar brief filed on behalf of IFI and IFA, Bopp wrote that the First Amendment has lower “standing-and ripeness mandates.” Quoting Chamber of Commerce v. FEC, 69 F.3d 600, 603 (D.C. Cir. 1995), he said a “party has standing to challenge, pre-enforcement, … the constitutionality of a statute if First Amendment rights are arguably chilled, as long as there is a credible threat of prosecution.”

“Because these … ordinances by their plain terms govern IFI’s and IFA’s intended activities and because these Advocates’ intention to offer public programs and education in these … cities is credible, their verified assertion that they are chilled from offering their public programs and education … is credible and sufficiently concrete,” the brief reads.

The IFI and IFA brief focuses on the ordinances in Carmel, Bloomington and Columbus, while the AFA brief focuses on Indianapolis, Bloomington and Columbus. According to Bopp, the organizations don’t meet any of the exceptions in the nondiscrimination ordinances, including religious and educational exceptions.

The AFA brief also asserts standing under the public-standing doctrine, relying on Cittadine v. Ind. DOT, 790 N.E.2d 978 (Ind. 2003).

“Importantly, Cittadine didn’t require that motorists await being struck by a train at an unmaintained railroad crossing before seeking to enforce a public duty; being at risk sufficed to sue,” Bopp wrote. “And where First Amendment rights are at risk for an ongoing policy and some speech is actually chilled, Advocates need not await some further harm than that direct harm already occurring and the direct harm of being stripped of RFRA protection along with other Hobby-Lobby-type entities.”

The organizations are also challenging the denial of their requests for judicial notice of a periodical about their Christian view of marriage, news articles purportedly showing the motives for the RFRA fix and Carmel ordinance, and a letter from 16 bipartisan law professors supporting RFRA. They likewise are challenging the court’s decision to strike portions of their Designation of Evidence and summary judgment motion discussing that evidence.

“… (T)he Free Exercise Clause requires that all evidence of governmental non-neutrality toward religious free-exercise be considered …,” Bopp wrote, citing Church of the Lukumi Bablu Aye v. Hialeah, 508 U.S. 520, 540 (1993) (plurality). “And specifically, evidence that reveals what ‘was the object of the [provisions at issue]’ is essential to determining a provision’s neutrality as to free-exercise. So all evidence showing governmental non-neutrality and a provision’s object, should be considered and must not be struck.”

The defendant cities have not yet filed appellate briefs.

The current appeal marks the second time the parties have sought appellate review of this case. After a judge in 2016 denied a motion to dismiss the lawsuit, the Indiana Court of Appeals declined to review that decision.

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