Terre Haute lawyer files lawsuit against Indiana's RFRA fix

Terre Haute attorney James Bopp Jr. on Thursday filed a lawsuit in Hamilton County court on behalf of the Indiana Family Institute and others. They argue that the restrictions violate the state Constitution by taking away legal protections based on a person’s religious views on matters such as same-sex marriages.

The religious-objections law, or RFRA (Religious Freedom Restoration Act), signed by Gov. Mike Pence in March, prohibited any laws that “substantially burden” the ability of a person, association or business to follow religious beliefs.

Indiana faced widespread criticism and threats of boycott over the original law that critics said would have shielded those who didn’t want to serve gays and lesbians, such as florists or caterers for a same-sex wedding.

The Republican-dominated Legislature in little more than a week approved revisions preventing the law from being used to override local ordinances with LGBT protections in more than a dozen cities or counties around the state.

The lawsuit also challenges local civil rights ordinances in Indianapolis and the suburban city of Carmel that include protections based on sexual orientation and gender identity.

Bopp Jr., a nationally known conservative attorney and constitutional scholar who has argued 13 cases before the U.S. Supreme Court, told the Tribune-Star the RFRA fix is “convoluted.”

“We pass a law that is a heightened protection for the exercise of religion, then we pass a law that excludes religious viewpoints from that heightened protection ... views that were deemed to be discrimination on sexual orientation or sexual identification,” said Bopp, who cited opposing religious viewpoints as an example.

“Unitarians, who believe in same sex marriage, have their views protected. If the government came in and said you can’t do same sex marriages, Unitarians would use RFRA as a defense,” he said. “But those faiths who believe in traditional marriage (of one man, one woman), they are denied the protection of RFRA, so we have this discrimination on the basis of religious viewpoint.”

The RFRA fix, Bopp said, exempted churches, clergy and church members in official capacities and church organizations; however, the American Family Association of Indiana, another litigant, and the Indiana Family Institute are not connected to any church.

He contends the revisions only protect those “people with a collar on and what happens inside the brick mortars of a church. That puts you under RFRA protection. However, people view their faith as how they conduct their life, not in the church, but out in the world.

“The gay lobby, people who drew this fix up, are not willing to let people practice religion outside of church,” Bopp said. “The gay rights organizations only accept people who are within a church or have a collar on. But people like Hobby Lobby, their religious views are not protected.”

Hobby Lobby, which asserts religious viewpoints such as closing on Sundays, may have paved the way for Indiana’s RFRA, as the U.S. Supreme Court in a Hobby Lobby ruling struck down a provision of the federal healthcare law. The Supreme Court ruled that businesses objecting to providing contraception to employees on religious grounds did not have to do provide the contraception. The court ruled that corporations were exempt from the health law on the basis of religion.

Among those opposed to the Thursday’s lawsuit is Indiana Competes, a coalition of about 275 businesses around the state that focuses on the economic ramifications of having solid nondiscrimination policies in the state, says Peter Hanscom, the coalition’s initiative director.

“We learned from the last legislative session that Hoosiers have no real tolerance for the idea of legalizing discrimination against LGBT Hoosiers here in Indiana,” Hanscom said.

Elected officials in cities across the state have championed these protections, and enacted measures, because “they want their communities to be seen as welcoming and a great place to raise families and conduct business,” he said.

“Instead of following that lead, we have others who would like to roll back those protections,” Hanscom said. “We’ve seen the economic harm that comes with doing that in the last legislative session.”

Wabash Valley state Reps. Bruce Borders and Alan Morrison were co-sponsors of RFRA in the House. They parted ways, though, when it came to the revisions.

Borders, a Republican from Jasonville, believed the supplemental legislation unnecessary, and voted against it. He was pleased to learn of the court challenge.

“As I had argued and still do, RFRA was never a discriminatory bill,” Borders said. “Basically, what I feel the ‘fix’ did was to take away freedoms of the First Amendment of the U.S. Constitution and Article 1, Section 3 of the Indiana Constitution, which talks about rights of conscious.”

The U.S. Constitution “states you can make no law establishing a federal religion or prohibit the exercise of religion,” he said. “The fix basically said you can practice your faith in the confines of the walls of a church but don’t exercise your faith outside. I think the fix took away the right to exercise your faith and religion.”

Fellow Republican Morrison of Terre Haute said he had “a neural response” to the lawsuit.

“Those organizations have the right to challenge any law that we pass, and I know Jim Bopp does an outstanding job on conservative issues throughout the country,” Morrison said. “If it makes it to the court, I will be interested to see what their decision will be. It is in their right to file a lawsuit and at this time I have no opinion if this lawsuit is positive or negative. It is what it is.”

Morrison voted for the revisions, which he characterized as the Legislature attempting to “figure out a balance of religious freedoms and civil rights. This is going to be a conversation and debate in our country for some time as to that balance between religious freedoms and civil rights.”

A debate is expected during next year’s legislative session over whether to add sexual orientation and gender identity as protected classes under state civil rights laws.

Terre Haute Republican Rep. Bob Heaton, who also co-sponsored RFRA and voted for the fix, could not be reached for comment on Thursday.

Like-minded Republican Sen. Jon Ford, also from Terre Haute, expressed a wait-and-see attitude on the lawsuit.

“My vote for the fix speaks for itself,” Ford said. “I did vote for the fix. It clarified the RFRA. We will see what the courts say.”