Conservative groups' lawsuit says RFRA fix unconstitutional

The Indiana Family Institute and American Family Association of Indiana, two conservative lobbying groups, filed a lawsuit Thursday challenging local nondiscrimination ordinances in Indianapolis and Carmel that protect sexual orientation and gender identity.

In claiming the ordinances strip the groups of their religious freedom protections, the lawsuit also contends that the Religious Freedom Restoration Act “fix” — which upholds such laws from religious objections — is unconstitutional.

“The ‘fix’ makes people of faith second-class citizens,” Indiana Family Institute President Curt Smith said in a statement, later adding: “Freedom is not a fixed, finite commodity which the Legislature reapportions from time to time between and among the now-favored groups. Freedom must be first preserved and then, as possible, expanded equally for all.”

The lawsuit presents an unusually convoluted situation — even Jim Bopp, the prominent conservative attorney in Terre Haute who is representing the case, acknowledges that.

But, simply put: The lawsuit asks the court to throw out the RFRA fix, and then makes a claim under the original RFRA that local nondiscrimination ordinances are undue government intrusions on the free exercise of religion and other First Amendment rights.

Essentially, it asks the court to choose between the competing interests that have clashed over RFRA for the past year: At the intersection of deeply held evangelical beliefs and rights for gay, lesbian, bisexual and transgender people, whose rights need to be protected?

Indiana’s original Religious Freedom Restoration Act, which passed into law this year with considerable conservative influence, sets a judicial standard for weighing religious objections. But, after outcry over whether that would allow Christians to discriminate against the LGBT community, lawmakers added the fix to prevent RFRA from being used to supersede local and state civil rights laws.

Now, religious conservatives say the fix does not afford equal protection to people of all faiths. It does not permit evangelical Christians to raise religious objections based on their views on marriage and sexuality — but it allows the objections of other faiths who don’t hold those beliefs.

“This pits some religions that the government protects against other religions that will suffer government punishment if they don't fall in line,” Bopp said in a statement. “We believe this discrimination between religious views is unconstitutional.”

The fix, the lawsuit said, “was in response to protests against RFRA by those who want to force others to not just passively accept persons and conduct inconsistent with the biblical view on marriage and sexual relations but to compel active participation with, and support for, such persons and conduct regardless of a religious objection.”

Daniel O. Conkle, an Indiana University Maurer School of Law professor, said it may be difficult to argue that the legislature should not have discretion in providing exemptions.

But, he said, what becomes notable is how the RFRA battle went down.

As the lawsuit lays out, RFRA at first gave everybody these heightened religious protections. But then the fix barred some from having those protections.

“Part of their claim hinges on that notion, that having once been granted this protection — albeit for the space of a week or so — then being taken away, that amounted to a denial of a fundamental interest in religious freedom,” Conkle said.

That could make the fix problematic, he said — “even though perhaps it might not have been problematic, had this all been part of one law, one enactment.”

Senate President Pro Tem David Long and House Speaker Brian Bosma, the Republican leaders who pushed for the fix, could not be reached for comment Thursday.

The state is not named in the lawsuit, but the attorney general’s office is tasked with defending state statutes and said it will review the complaint.

Another legal expert, Robert Katz of IU’s McKinney School of Law, said the lawsuit is merely an attempt to influence upcoming legislation.

“The plaintiffs tie themselves into pretzels trying to argue that the RFRA fix is unconstitutional,” Katz said in an email. “I see this as more of a political statement than a serious lawsuit: the plaintiffs are trying to arouse pity for people like themselves.”

He saw the lawsuit as commentary on the Senate Republicans’ proposal, Senate Bill  100, to expand the state civil rights law — in part as a criticism, Katz said, “for not doing enough to protect religious conservatives.”

Part of the reason why the conservative groups lobbied for the original RFRA was to win broader religious protections for private citizens with deeply held religious beliefs — not just religiously affiliated organizations such as churches.

Their faith, they argue, extends to every bit of their being, beyond the walls of a church on Sundays.

But those people of faith are forced to go against their beliefs, they say, under the Indianapolis and Carmel ordinances that prohibit discrimination in employment, housing and public accommodations based on sexual orientation and gender identity.

Conservative Christians, the lawsuit said, “are compelled to associate with activities and social, political, and ideological messages with which they disagree, which are substantial burdens on free association.”

As nonprofit policy and education groups, the Indiana Family Institute and American Family Association of Indiana don’t fall under the formal definition of religious organizations. But they emphasize evangelical beliefs, having long advocated against legalizing same-sex marriage.

Both groups say they require employees to sign statements of faith. They also only allow people who share their beliefs to participate in the programs they offer in leadership, marriage enrichment and policy advocacy.

“RFRA would protect our religious liberty against those ordinances,” Bopp said. “The fix, which would deprive of us those protections, is unconstitutional. It’s discriminating among religious viewpoints, and therefore we fall squarely under RFRA’s protections.”

The lawsuit also challenges the discrimination protections that cover transgender people, arguing that the concept of gender identity is “impossibly vague.”

“You can have the government come after you for discriminating against one of these 71 different permutations of what gender identity or expression is,” Bopp said, “recognizing that each of them can change minute by minute at the whim of the person involved.”

But Freedom Indiana, a grass-roots group supporting lesbian, gay, bisexual and transgender rights, said the lawsuit was "designed to turn back time" and would continue the damages against the state's reputation from RFRA.

"We hope lawmakers ignore this distraction and listen instead to the voices of job creators, faith and community leaders, local public servants, grassroots supporters and families who want our state to be a safe, welcoming place for all people," spokeswoman Jennifer Wagner in a statement.

The lawsuit, filed in Hamilton Superior Court, is a pre-enforcement challenge, which means it was filed before any conflict arose.

It names the cities of Indianapolis and Carmel as defendants. The cities’ mayors stood by their ordinances Thursday in statements.

“The rights of LGBT people and their families can co-exist with the rights of people with sincere religious beliefs to practice their faith, as we have seen in Indianapolis for the past decade," said Brad Jacklin, press secretary for Indianapolis Mayor Greg Ballard. "The City of Indianapolis will continue to stand with our LGBT families, friends, neighbors, and visitors. A lawsuit, frivolous as it may be, is a small price to pay to keep Indianapolis an open, welcoming place for people of all backgrounds, including the publicity gluttons behind this lawsuit.”

In Carmel, passing the nondiscrimination ordinance this year stirred the same kind of tensions that resonate statewide.

“We are going to wait and see the lawsuit before we reply,” Carmel Mayor Jim Brainard wrote, “but we do think it is unlikely that a law prohibiting discrimination against veterans and minorities would be found unconstitutional.”

On the other side, councilman Eric Seidensticker, who opposed the ordinance, said the legal challenge didn’t surprise him.

“When you stipulate that somebody must ignore their religious perspectives, their religious views, their religious rights, to accommodate someone else,” he said, “you are regulating religion of an individual.”

But Conkle, the law professor, points out that if the conservative groups can win their argument against the fix, their contention against the local nondiscrimination ordinances would still have to be put to the RFRA test.

That is: Does the government have a compelling interest in banning LGBT discrimination?

Call Star reporter Stephanie Wang at (317) 444-6184. Follow her on Twitter: @stephaniewang.