Monday, June 19, 2006

South Bend Tribune Endorses A "Voluntary" Gay Rights Ordinance

The South Bend Tribune thinks that its common council should pass the human rights ordinance which prohibits discrimination on the basis of sexual orientation or gender identity, but it is asking the council to amend it so that its compliance is voluntary only. The reason for the newspaper's position is that a legal memorandum prepared by a South Bend attorney advising the council concerning the proposed human rights ordinance misinterprets Indiana law in my opinion. Apparently, the South Bend Tribune was fooled by the faulty legal analysis set out in this memorandum. Today's editorial reads:

It was not a surprise to us that most people in Indiana favor civil rights protection for gays and lesbians. Indiana may be a conservative state. But it also is a state in which fairness is highly valued.

A statewide poll released in May, which was commissioned by the gay rights organization Indiana Equality and conducted by the Indiana University Center for Survey Research, showed that 79 percent of Hoosiers believe that homosexuals should have the same civil rights protection as other people.

The poll also revealed that in some communities local elected officials seem to be slower than the general public in accepting rights protection for gays. Whether or not this is one of those communities is a question underlying a current South Bend Common Council effort. The council is confronting the issue of whether to add language to the South Bend Human Rights Ordinance that would ban housing and employment discrimination against gay, lesbian, bisexual and transgendered people.

We agree with Mayor Stephen Luecke when he says "... it is appropriate for our community to make a stand that says we oppose discrimination against individuals in this category." Luecke supports adoption of an ordinance that mandates compliance.The difficulty comes in doing that on the city level when state law does not recognize GLBT people as a protected class. When the South Bend Human Rights Commission receives a discrimination complaint, it makes a decision as to the merits of the case. If the ordinance were to pass and a city resident were denied work or housing because of sexual orientation, the Human Rights Commission could declare the action a violation the resident's civil rights. But without the underpinnings of state and federal civil rights law, the commission's findings ultimately would be unenforceable.

For the ordinance to be legally enforceable, Indiana law must be changed to include sexual orientation as illegal grounds for denying housing, employment or public accommodations. Then there would be remedies for victims, just as there
now are remedies for victims of discrimination based on race, gender, national origin or religion. In our opinion, the best way to address the issue at this time is for the South Bend Common Council to approve the ordinance with a provision that calls for voluntary compliance.Some might wonder if an ordinance with voluntary compliance is worth the trouble it takes to pass it. We think that in this case it is. The ordinance would put South Bend on record as a city that deplores discrimination. That is worth a lot.

Conversely, rejection of the ordinance, especially with its exception for discrimination that is based on religious beliefs, would create a negative image for South Bend. We hope that members of the Common Council understand the fact that adoption of a voluntary Human Rights Code amendment is both the right thing and the best thing to do.

While it is true that neither the federal nor state civil rights laws specifically include language protecting persons as a class on the basis of "sexual orientation" or "gender identity", there is absolutely no legal basis for asserting that no protections can be afforded on this basis without the federal or the state law's being amended to include this class. Indeed, hundreds of communities across the country have done so in the absence of federal or state civil rights protections, although there are a growing number of states which do provide protection to this class. Moreover, our U.S. Supreme Court has recognized the importance of enacting such protections. In Romer v. Evans, Justice Anthony Kennedy, writing for a majority in striking down a Colorado law which specifically withheld the right of local communities to add these protections in local ordinances, wrote:

[W]e cannot accept the view that [the Colorado law's] prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by [ ] enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections [the Colorado law] withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.

What the newspaper is essentially saying is that the City of Indianapolis didn't understand Indiana law when it passed a human rights ordinance, and that it is unenforceable. The attorney advising the city claims that the State's civil rights law prohibits the city from adopting a civil rights law that is broader than the state's civil rights law. That is simply wrong for several reasons.

Firstly, Indiana's civil rights law specifically says it is to be "construed broadly to effectuate its purpose." The state civil rights law specifically grants the right of communities like South Bend to adopt their own human rights codes and establish a governing authority to enforce civil rights, which South Bend has chosen to do. The state law permits such local regulation and enforcement as long as it is not contrary to the purposes of the state law. It is quite a stretch for an attorney to suggest that expanding the law's coverage to protect a class of persons from discrimination is contrary to the purposes of the state civil rights law.

South Bend's home rule powers additionally serve as a source of law for cities like South Bend to adopt ordinances that are otherwise not covered by a state statute. Communities exercise their home rule authority to regulate an endliss list of issues, including smoking, drinking, dogs, housing, etc. Indiana's Home Rule Act specifically abrogated the traditional rule that local governments possessed only those powers specifically granted by statute. Since its adoption, Indiana courts have consistently held that "the traditional presumption regarding implied power has been reversed, so that now any doubt as to the existence of a power of a county, township, or municipality shall be resolved in favor of its existence. Moreover, a municipality's common law police powers also serve as a source of law for combatting discrimination in public accomodations, housing and employment.

My analysis of the law is consistent with that given to the City of Indianapolis' EEO office by counsel at Ice Miller. It is unfortunate that the city and the South Bend Tribune have been led astray by a faulty legal analysis of Indiana law. Advance Indiana would implore South Bend's legal counsel to speak to attorneys at Ice Miller and others versed in the law in this area to understand that it is operating under a totally false assumption to believe Indiana law does not permit South Bend to enact an enforcible law that probits discrimination on the basis of sexual orientation or gender identity.

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