RFRA and localism: Can New Albany’s human rights laws trump the state’s?


At this evening’s meeting, councilman John Gonder has a human rights resolution on tap: RFRA resolution: Gonder rushes in where Gahan fears to tread.

During a conversation at Facebook, Gonder was asked, “Will (the) legislative ‘clarification” remove NA’s existing human rights ordinance from presumed limbo?”

Gonder answered.

I think the uproar over the state law underscores how important local efforts such as the Human Rights Commission can be. How the “fix” will affect the HRC and such boards elsewhere in the state is one reason why the intent of the resolution is still valid. Locally we need to take the measure of our collective backbone and commit to backing up the good intentions of the HRC and the Ethics Commission with substantive support up and down the line.

Seemingly, we must all now become lawyers. Thanks, Grooms. Now, about the “fix” …

What The ‘Fix’ To Indiana’s ‘Religious Freedom’ Bill Does And Does Not Do, by Ian Millhiser (Think Progress)

Indiana lawmakers released a widely awaited “fix” on Thursday to a new Indiana law that, as it exists right now, can be invoked by anti-gay businesses who wish to discriminate against LGBT individuals in violation of local ordinances. The fix does nothing to expand LGBT rights beyond where they stood on the day before Gov. Mike Pence (R-IN) signed the new Indiana law. Nevertheless, it appears to be expansive enough to neutralize attempts to wield the Indiana law as a sword to cut down LGBT rights protections at the local level.

To understand how the “fix” is likely to work, it’s important to first understand the current state of Indiana’s LGBT rights law, as well as how the bill Pence signed into law functions. At the state level, Indiana does not protect LGBT people from discrimination by private businesses. Several Indiana cities and counties, however, including the city of Indianapolis, have enacted local ordinances protecting against many forms of anti-LGBT discrimination.

… Although the fix does nothing to expand LGBT rights, anti-gay groups started complaining about it days before its language even became public …

So, what about our local safeguards? New Albany merits a brief mention here.

Do local laws really protect rights of LGBT Hoosiers? by Stephanie Wang (Indy Star)

In the absence of a state law banning discrimination against gays and lesbians — and in the explosive wake of Indiana’s Religious Freedom Restoration Act controversy — more cities are considering their own protections of LGBT rights at the local level.

But even though Marion County and 10 other Hoosier communities already have local nondiscrimination ordinances that include sexual orientation, experts say such protections can be so weak that they are virtually unenforceable.

The Bookseller provides greater context for tonight’s meeting with these thoughts, as gleaned from the Fb discussion thread mentioned at the top. First, a call and response with Gonder.

Randy Smith: Just declare that our Human Rights Resolution remains in effect and trumps state law. What are they going to do, sue you?

John Gonder: Just this morning, I read that North Dakota was going to pursue industrial hemp without regard to federal law. How different is that than a City standing for principle over process?

Randy elaborates.

A city is an artificial creation of the state with limited home rule (sovereignty) and a state has at least some independent status under the Constitution. However, the legislature, having not addressed municipal ordinances and resolutions (which they could have done), leaves it open to “arguance.” The substantial burden defense is a defense, but it need not prevail when a city has established nondiscrimination rules within its boundaries … that is, it’s not a complete defense, especially when a city has legislated community standards that prohibit discrimination. They could have added specific preemption language. They did not. Therefore, I would argue that New Albany’s nondiscrimination resolution remains in effect.

As I understand it, we cannot create a municipal broadband utility because AT&T and the other wire carriers (and ALEC) lobbied for a law preventing it. (That should be repealed, btw.) But Scottsburg was not required to divest itself of its own municipal broadband utility, even as laggard cities like New Albany are prevented from doing so. Without specific preemption language, a case in New Albany would have a judge weighing a nebulous defense against a clear nondiscrimination rule. Discriminators can move their businesses to a city that welcomes it.

I’m OK with the proposed resolution to Gov. Pence. Messaging is important. I just think we cities who have human rights ordinances should band together and say “That’s not us. That law (RFRA) has no effect here.”

Personally speaking, I’m for having the clearest and toughest anti-discrimination rules in the state, and enforcing them accordingly.

Let New Albany’s favorite son of an attorney general come after us, if he likes.