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In the Indiana Court of Appeals Case No. 19A-MI-02991 Brief Of

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In the Indiana Court of Appeals Case No. 19A-MI-02991 Brief Of Received: 2/29/2020 11:08 PM In the Indiana Court of Appeals Case No. 19A-MI-02991 Indiana Family Institute, Inc.; Indiana Family Ac- tion, Inc.; and The American Family Association of Indiana; Plaintiffs-Appellants v. The City of Carmel, Indiana; City Attorney for the Appeal from the City of Carmel, Indiana; Douglas Haney, in his offi- Hamilton County Superior Court 1 cial capacity as City Attorney for the City of Carmel, Indiana; The City of Indianapolis-Marion County, Case No. 29D01-1512-MI-010207 Indiana; The City of Indianapolis-Marion County Equal Opportunity Advisory Board; The City of Hon. Michael A. Casati, Judge Bloomington, Indiana; The City of Bloomington Human Rights Commission; The City of Columbus, Indiana; The City of Columbus Human Rights Commission; The State of Indiana; Attorney Gen- eral Curtis Hill, in his official capacity as Attorney General of the State of Indiana; Defendants-Appellees Brief of Appellant American Family Association of Indiana James Bopp, Jr. Lead Attorney for Plaintiffs-Appellants [email protected] Richard E. Coleson [email protected] Melena S. Siebert [email protected] The Bopp Law Firm, PC 1 South Sixth Street Terre Haute, IN 47807 Telephone: 812-232-2434 Attorneys for Plaintiffs-Appellants 1 BRIEF OF APPELLANT AMERICAN FAMILY ASSOCIATION OF INDIANA (“AFA”) Table of Contents Table of Contents . 2 Table of Authorities . 4 Statement of Issues . 5 Statement of Case . 6 Statement of Facts. 7 A. RFRAs have a strongly bipartisan history, same-sex marriage is recent, and this is a type of compelled-speech case called a forced-inclusion-expressive-association case. 7 B. RFRA protected three classes of “persons,” the Provider-Exclusion stripped protec- tion from “providers,” and the Provider-Exceptions restored it to some “persons.” . 10 C. AFA and other Advocates are RFRA “persons” as Hobby-Lobby-type entities, not as primarily-for-religious-purposes entities, so are not “nonprofit religious organi- zations or societies” as defined in RFRA, and were stripped of RFRA protection.. 13 D. AFA is an expressive-association that advocates for its pro-traditional-family issue by providing services, including education, with a policy of excluding same-sex married couples from otherwise public programs. 14 E. AFA is chilled and its chill is credible because the challenged, nonmoribund ordi- nances, by their plain terms, govern AFA and its intended activities. 16 Summary of Argument . 20 Argument . 22 I. Advocates have standing and ripeness to challenge (i) “nonprofit religious organi- zation or society” as unconstitutionally vague and (ii) being stripped of RFRA pro- tection by the Amendment.. 23 A. Controlling standing-and-ripeness standards permit these challenges if Ad- vocates are either RFRA “persons” stripped of protection by the Amend- ment or may be due to the vagueness of “nonprofit religious organization or society.”. 24 2 BRIEF OF APPELLANT AMERICAN FAMILY ASSOCIATION OF INDIANA (“AFA”) B. Advocates are RFRA “persons” stripped of protection by the Amendment because they are “providers” with a “sexual orientation” Exclusion Policy. 27 1. Advocates’ programs are public under the required scope of “public,” though the Amendment does not require that all services be offered to the public to be stripped of RFRA protection.. 27 a. The Amendment covers services that are not offered to the public.. 27 b. “Public” may not be limited to at-will, walk-in public accommoda- tions or an antidiscrimination provision is fatally underinclusive as to its interest.. 28 c. “Public” may not be deemed nonpublic when individuals are excluded from an otherwise public programs on banned bases. 32 d. Government may not tell religiously motivated speakers and expressive-associations what policy they do and may have.. 32 2. Advocates are not within the exemption for a “nonprofit religious organi- zation or society” within the meaning required by RFRA. 35 C. Alternatively, Advocates have standing under public-standing doctrine. 38 II. Advocates have standing and ripeness to challenge the ordinances under RFRA and constitutional protections, facially (given vague provisions) and as applied to Advo- cates’ Exclusion Policy. 42 A. Controlling standing-and-ripeness standards authorize Advocates to challenge provisions that by their terms burden and chill their speech and expressive-as- sociation. 42 B. AFA has standing and ripeness to challenge the Indianapolis Ordinance. 43 C. Advocates, including AFA, have standing and ripeness to challenge the Bloomington and Columbus Ordinances. 52 III. Advocates’ request for judicial notice should have been granted and discussions of such evidence should not have been struck.. 52 3 BRIEF OF APPELLANT AMERICAN FAMILY ASSOCIATION OF INDIANA (“AFA”) Conclusion . 52 Word Count Certificate. 54 Certificate of Service . 55 4 BRIEF OF APPELLANT AMERICAN FAMILY ASSOCIATION OF INDIANA (“AFA”) Table of Authorities Cases Employment Division v. Smith, 494 U.S. 872 (1990) . 10 Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936) . 34 Babbitt v, United Farm Workers Nat’l Union, 442 U.S. 289 (1979) . 28 Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) . 11 Boy Scouts of America v. Dale, 530 U.S. 640 (2000). 13, 17, 35-37 Broadhacker v. City of Indianapolis, 864 N.E.2d 372 (Ind. Ct. App. 2007) . 32, 33 Brush & Nib Studios v. City of Phoenix, 448 P.3d 890 (Ariz. 2019) . 12, 18 Buckley v. Valeo, 424 U.S. 1 (1976) . 27 Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014) . 14 Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006) . 13 Cittadine v. Ind. DOT, 790 N.E.2d 978 (Ind. 2003) . 41-43 FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) . 23 Fishers Adolescent Catholic Enrichment Soc., Inc. v. Bridgewater ex rel. Bridgewater, 990 N.E.2d 29 (Ind. Ct. App. 2013) . 33, 34 Fishers Adolescent Catholic Enrichment Soc., Inc. v. Bridgewater ex rel. Bridgewater, 23 N.E.3d 1 (Ind. 2015) . 33, 34 Fishers Adolescent Catholic Enrichment Soc., Inc. v. Bridgewater ex rel. Bridgewater, 996 N.E.2d 327 (Ind. 2013) . 33 Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) . 3, 34-35 Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018). 13 5 BRIEF OF APPELLANT AMERICAN FAMILY ASSOCIATION OF INDIANA (“AFA”) Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018) . 12 Matal v. Tam, 137 S.Ct. 1744 (2017) . 28 National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) . 13, 28 Obergefell v. Hodges, 135 S. Ct. 2584 (2015) . 11, 23, 25, 47 Pflugh v. Indianapolis Historic Pres. Comm’n, 108 N.E.3d 904 (Ind. Ct. App. 2018) . 26, 45 Pflugh v. Indianapolis Historic Pres. Comm’n, 113 N.E.3d 628 (Ind. 2018) . 26, 45 Reed v. Plan Comm’n of Town of Munster, 810 N.E. 2d 1126 (Ind. Ct. App. 2004) . 26 Reed v. Plan Comm’n of Town of Munster, 831 N.E.2d 734 (Ind. 2005). 26, 45 Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) . 28 Republican Party of Minnesota v. White, 536 U.S. 765 (2002) . 34 Sequoia Books, Inc. v. Ingemunson, 901 F.2d 630 (7th Cir. 1990) . 27 State ex. rel. Steinke v. Coriden, 831 N.E.2d 751 (Ind. Ct. App. 2005) . 42-43 Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019) . 12, 18 Thomas v. Review Board of the Ind. Employment Security Div., 450 U.S. 707 (1985) . 36 Constitutions, Statutes, Ordinances & Rules 42 U.S.C. §§ 2000bb–2000bb-4 . 10 Bloomington Municipal Code § 2.21 . 21-22, 55 Columbus City Code § 9.24 . 22, 55 Ind. Code § 5-4-1-1. 42 Ind. Code § 34-13-9 . passim 6 BRIEF OF APPELLANT AMERICAN FAMILY ASSOCIATION OF INDIANA (“AFA”) Ind. Appellate Rule 22(D). 8 Ind. Appellate Rule 46(G). 8 Ind. Const. art. 15, § 4. ..
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