Indiana’s Limited LGBT Protections Under Fire By Lawsuit

CREDIT: Twitter/American Family Association of Indiana

Micah Clark of the American Family Association of Indiana (solid yellow tie) and Curt Smith of the Indiana Family Institute (tall in back) stood behind Gov. Mike Pence (R-IN) as he signed the original Religious Freedom Restoration Act, which had no exemptions for nondiscrimination protections. They helped write that original bill.

The fight over LGBT discrimination in Indiana is far from over. Not only are Republicans considering one of the most anti-LGBT bills ever, a new lawsuit is seeking to overturn what limited protections exist in the state.

The Indiana Family Institute (IFI) and American Family Association of Indiana (AFA-I) have filed a lawsuit in state court seeking to overturn the legislative “fix” passed last year to ensure that the controversial Religious Freedom Restoration Act (RFRA) did not enable anti-LGBT discrimination.

Indiana does not have any statewide protections against such discrimination in place, but several cities do at the municipal level. The suit also challenges those protections in both Indianapolis and Carmel, alleging that they infringe on the groups’ religious liberty.

“The ‘fix’ makes people of faith second-class citizens,” IFI President Curt Smith explained. One of the suit’s claims is that because RFRA passed without the exception for nondiscrimination, but then the exception was passed, there was a religious protection that was enjoyed for that week but then stripped it away. This, the suit claims, “triggers equal-rights protections, requiring special justification by the government.”

Specifically, the groups accuse the “fix” of engaging in “viewpoint discrimination” against those with the “traditional biblical view of marriage and human sexuality (which requires that sexual relations occur only within a biblical marriage between one man and one woman).” It favors “religious traditions that have no objection to same-sex marriage… over those religious traditions that oppose same-sex marriage.” In fact, it “discriminated” against that latter group, the suit claims.

But what’s clear from the suit is the groups’ insistence that refusing service to LGBT people should be legal; they reject the notion the government has any compelling interest to protect against such discrimination. Not only does the complaint rely on this assumption, it asserts it outright. “The RFRA Exclusion and Exceptions do not serve a valid secular legislative purpose,” the suit says. Their goal, instead, was to “compel active participation with, and support for, such persons and conduct regardless of a religious objection.”

The groups fail, however, to articulate specific examples of what that active participation actually looks like. Here are their vague primary objections:

  • Forced speech: “Plaintiffs are compelled to speak, including by implied endorsement or facilitation, in ways favorable to conduct, including same-sex sexual conduct, with which they disagree, which are substantial burdens on free speech.”
  • Forced associations: “Plaintiffs are compelled to associate with activities and social, political, and ideological messages with which they disagree, which are substantial burdens on free association.”
  • Forced endorsements: “Plaintiffs are expressive associations, and forcing them to endorse activity, including same-sex sexual activity, with which they disagree substantially burdens their expressive association.”

As the complaint itself demonstrates, these organizations are in no way prevented from speaking out against LGBT equality. By making these arguments, they’re actually acknowledging that they are bound by the same expectations as everybody else — that the law is generally applicable to everybody in the same way. They just don’t like it.

And that’s why they’re throwing everything at the wall. The “fix” allows LGBT nondiscrimination ordinances in cities like Indianapolis and Carmel to be enforced. IFI and AFA-I want the exclusions overturned so that they can use RFRA to justify violating those ordinances. If that doesn’t work, they want to use RFRA to overturn the local ordinances on their face so that the exclusions have nothing to apply to.

If the argument prevails in either way, the end result would be the same. The few laws across the state that actually protect LGBT people would be voided so that discrimination could prevail.