Ind. Family Inst. Inc. v. City of Carmel

Decision Date10 September 2020
Docket NumberCourt of Appeals Case No. 19A-MI-2991
Citation155 N.E.3d 1209
Parties INDIANA FAMILY INSTITUTE INC., et al., Appellants-Plaintiffs, v. CITY OF CARMEL, et al., Appellees-Defendants.
CourtIndiana Appellate Court

Attorneys for Appellants: James Bopp, Jr., Richard E. Coleson, Amanda L. Narog, Melena S. Siebert, The Bopp Law Firm, PC, Terre Haute, Indiana

Attorneys for Appellee: Libby Yin Goodknight, KRIEG DeVAULT LLP, Indianapolis, Indiana, Jeffrey C. McDermott, Matthew C. Branic, KRIEG DeVAULT LLP, Carmel, Indiana, Douglas C. Haney, City of Carmel Corporation Counsel, Carmel, Indiana, Daniyal M. Habib, Office of Corporation Counsel, Indianapolis, Indiana, Curtis T. Hill, Jr., Attorney General, Indianapolis, Indiana, Aaron T. Craft, Benjamin M.L. Jones, Deputy Attorneys General, Indianapolis, Indiana, Michael M. Rouker, City Attorney, Bloomington, Indiana, Larry D. Allen, Daniel A. Dixon, Assistant City Attorney, Bloomington, Indiana, Ann C. Coriden, CORIDEN GLOVER, LLC, Columbus, Indiana, Alan L. Whitted, Columbus City Attorney, Columbus, Indiana

Altice, Judge.

Case Summary

[1] This appeal stems from the filing of a lawsuit in 2015 by The Indiana Family Institute (IFI), Indiana Family Action (IFA), and American Family Association (AFA) (collectively, "the Companies"), against the cities of Carmel, Bloomington, Columbus, and Indianapolis (collectively, "the Cities"), challenging the constitutionality of Indiana's Religious Freedom Restoration Act1 (RFRA) and the Cities' nondiscrimination ordinances.

[2] The Companies asserted that RFRA and the ordinances chilled their rights to free speech and the free exercise of religion under both the federal and state constitutions. More specifically, the Companies claimed that their policy of excluding same sex couples from their religious-based education programs constituted unlawful sexual orientation discrimination under the ordinances, even though RFRA was designed to permit exclusions and exceptions to those in their circumstances. In other words, the Companies claimed that because they were not churches or other religious entities as defined in the legislation, RFRA afforded them no protection, and their exclusion of same-sex couples from their events would subject them to various penalties defined in the ordinances, should the Cities choose to enforce them.

[3] Summary judgment was granted in favor of the Cities and the Companies now appeal, claiming that the trial court erred in determining that they lacked standing to pursue their actions and in concluding that their claims were not ripe.

[4] The Companies also argue that the trial court erred in refusing to take judicial notice of various online magazine and newspaper articles involving the passage of RFRA and a letter signed by several law professors addressed to the Indiana Senate Judiciary Committee that purports to be an analysis of pending legislation.

[5] We affirm.

Facts and Procedural History
A. The Companies

[6] The Companies are affiliated Christian advocacy organizations in Indiana that promote what they believe to be "the biblical teaching ... that marriage must be between one man and one woman and sexual relations must be within that marriage context." Appellees' Joint Appendix Vol. V at 133-36. The Companies maintain that permitting same sex couples to attend their otherwise public programs would alter their "pro-traditional family message." Appellant AFA's brief at 18. Hence, they contend their policy is to exclude those known to be in same sex marriages from their workshops, presentations, and fundraising events.

[7] IFI is a nonprofit corporation founded in 1989 and is based in Carmel. One of IFI's programs is the Hoosier Leadership Series (HLS) that focuses on the wellbeing and health of Indiana families. HLS is designed to connect "conservative leaders from around Indiana as part of a movement to impact the social, cultural, political, and spiritual landscape of Indiana." Appellant IFI and IFA's Brief at 13.

[8] HLS events including banquets and presentations are not open to the public and interested individuals who are interested in HLS's program submit written application to IFI and undergo personal interviews. Applicants are not screened about their religious beliefs or sexual orientation, and IFI has not rejected anyone from participating in the HLS program on these bases.

[9] IFI president Curt Smith acknowledged that IFI would not necessarily know about the participants' sexual orientation, and he admitted that the organization has "served many gay people over the years." Appellees' Joint Appendix Vol. II at 238. Any RSVP process that IFI uses is only "for head count planning purpose[s]." Id. at 226. Although members of IFI and participants in the HLS series must meet "ethical" standards, those qualifications refer to characteristics that include "honesty, punctuality, and respect." Id. In fact, IFI educates "everyone who will listen" to its message. Id. at 84.

[10] Hoosier Commitment is a marriage enrichment program taught by IFI staff. Its services were offered to incarcerated and low-income individuals. Welfare agencies referred their own clientele to IFI for participation in the Hoosier Commitment program, and the jails identified participants from within their populations. Classes were initially offered in 2010, and the program was funded in part by a one-time grant from the federal government. That grant expired in 2013, and IFI has not offered a similar program since. Smith stated that re-starting Hoosier Commitment would require an act of Congress to fund it, yet that program was not presently a "primary focus" of IFI. Appellees' Joint Appendix Vol. IX at 97, 99-100.

[11] IFA—the advocacy arm of IFI—is also based in Carmel. It educates the public about life, marriage, and religious freedom issues. IFA's income varies each year and is primarily generated from donations. Its work is election oriented, and it has not held an event since 2012. Moreover, IFA has not had an employee—nor has it interviewed anyone for a position of employment—since hiring two temporary field directors in 2012.

[12] Due to limited funding, IFA's only activities in 2018 were completing a voter guide and mailing postcards "to educate voters on specific issues." Appellees' Joint Appendix Vol. II at 87. IFA averred that it might employ "5-6 more field staff in 2018 ... [for the purpose of educating voters] throughout the state...." Appellants' Appendix at 66.

[13] The directors and employees of both organizations are required to sign statements of faith affirming their belief in—and willingness to abide by—Christian principles, including biblical teachings on marriage and human sexuality. Neither IFA nor IFI will employ individuals who do not uphold and share these principles.

[14] Like IFI, IFA has no "test" as to whom they will share their message. Appellees' Joint Appendix Vol. II at 87-88. To be sure, IFA's representatives made it clear everyone is welcome to "come and learn and listen quietly to what ... IFA's views were on ... the Biblical views of marriage or sexuality, or learn about the candidates and issues that were important to IFA." Appellees' Joint Appendix Vol. VI at 26-27. IFA does not inquire about attendees' religious beliefs or sexual orientation as a precondition of being admitted and it does not "check or ask about sexual orientation" at the door. Appellees' Joint Appendix Vol. II at 87.

[15] IFA and IFI maintain that they may offer educational programs and services to the public in Carmel, Columbus, and Bloomington at some point in the future. However, they will not do so "unless the ordinances are enjoined" because they are "at risk of facing penalties if the ordinances are enforced." Appellant IFI and IFA's Brief at 17.

[16] AFA, located in Indianapolis, was organized in 1993. For over fifteen years, AFA has advocated a "pro-traditional" family message through its education programs. Appellants' Appendix Vol. II at 54. AFA also follows the biblical teaching on marriage and human sexuality. And like IFI, the board of directors and employees of AFA must sign a statement of faith, affirming their belief in Christian principles.

[17] AFA has hosted various "grassroots training conferences" that "teach people how to be more involved in the political process through either elections or contacting their legislator or informing people in their church about the issues." Id. at 147–48. AFA uses a conference room in its building for meetings and discussions of various issues, and it reserves the right to exclude those who are known to be in same sex marriages. The designated evidence shows, however, that AFA has not actually excluded anyone from participating in the training conferences because of sexual orientation or religious belief.

[18] Other than hosting an anti-pornography conference in the early 2000s, AFA has not offered educational services or programs in Columbus. Nonetheless, AFA claims that it intends to "host educational programs and events ... in Indianapolis, Bloomington, and Columbus...." Appellant's Appendix Vol. II at 71.

B. RFRA and the Ordinances

[19] RFRA, enacted in 2015, applies to all of the Cities and their ordinances. See Ind. Code § 34-13-9-1. It provides that "a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability." I.C. § 34-13-9-8. RFRA includes various antidiscrimination safeguards, in that it does not

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.

I.C. § 34-13-9-0.7 (emphasis added). Under RFRA, a "provider" is defined as "one ... or more individuals, partnerships, associations, organizations, limited...

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