Saturday, October 09, 2010

HRO Authors Don't Understand Their Own Law

The Indianapolis Star is aflutter this weekend because the authors of Indianapolis' Human Rights Ordinance, City-County Councilor Jackie Nytes (D) and former City-County Councilor Scott Keller (R), have decreed it does not apply to prohibit Just Cookies, a family-owned bakery that operates in the city-owned City Market, from refusing to serve a GLBT-oriented student organization. A Star editorial hails a column penned by the two, along with a couple of self-appointed representatives of an organization called Indiana Equality, as "thoughtful and gracious." According to the HRO authors' view, requiring Just Cookies to prepare rainbow-colored cupcakes for a GLBT organization "force[s] a small business owner to support a political initiative he or she opposes." Phooey.

"The recent amendment to the (human rights ordinance) was designed to ensure that (gay, lesbian, bisexual and transgender) citizens are treated with the common decency that every human being deserves," the HRO's authors claim. There is absolutely nothing in the HRO requiring anyone to treat anybody else with "common decency" as these authors claim. There is, however, a specific prohibition in the Indianapolis HRO that prohibits discrimination in public accommodations on several bases, including sexual orientation or gender identity. Further, any city contract, including the lease signed by Just Cookies to operate in City Market, requires a clause prohibiting discrimination by the business in its operations on either of these bases. The HRO's authors suggest the refusal to serve the GLBT-oriented student organization was based on an expression of their free speech rights against the "National Coming Out" event for which they placed their order, an "essential nuance", not because of their associations with gays, lesbians or transgendered persons. "We suspect that they would have refused this particular order no matter who placed it, gay or straight," the authors write. "We are aware of no other reports of the vendor refusing to serve their product to GLBT persons," they assert.

Well, unless the Stocktons have super-human gaydar capabilities, it seems unlikely that they can scan every customer and immediately discern whether they are gay. If former BMV Commissioner Andy Miller had stopped by Just Cookies earlier this week to purchase some cookies to satisfy his appetite before visiting the men's bathroom at Claypool Court to jack off in front of other male patrons of the bathroom, I highly doubt the Stocktons would have had any reason to suspect he was gay unless he had told them what he planned to do after he specifically requested rainbow-colored cookies. Would they? What we know is the Stocktons turned down the order after they learned the request for rainbow-colored cupcakes was for a GLBT-oriented student organization in celebration of National Coming Out Day. It wasn't because they requested cupcakes instead of cookies. It wasn't because they placed a special order, or their order was too large to fill. It wasn't because they requested rainbow-colored cupcakes instead of red, white and blue cupcakes. It was because they requested cupcakes for a gay organization in celebration of a gay-oriented event. The Stocktons could no more refuse to serve the student organization than any downtown hotel could refuse to book rooms for a gay organization's event, a group of Baptists or Black Expo. In any of these cases, the hotel's refusal to accommodate the gay organization, the Baptists or Black Expo is not not a question of free speech; it is a question of providing public accommodations without discriminating on the basis of a person's sexual orientation, religion or race.

Indeed, this is the very position Indianapolis officials have taken with respect to downtown businesses hours of operation during Indiana Black Expo's Summer Celebration. After Black Expo's organizers complained to city leaders that a number of businesses closed down during Black Expo's Summer Celebration, the business owners were given a less than thinly-veiled threat to keep their businesses open or face action by the city. Some of the business owners would tell you their reason for closure had nothing to do with race; rather, they were tired of dealing with the roaming mobs of teen-aged hooligans who frightened away their customers, endangered their employees and damaged their property. Multiple shooting victims at this year's event and previous events over the years proves their fears are not unfounded. Nonetheless, city officials made it clear racial inferences would be drawn from their actions if they chose to close their businesses down during otherwise normal hours of operation for the businesses.

Perhaps no other organization in this state needs to be reminded of what Indianapolis' HRO means than Indiana Equality. The organization claims its mission is "to end discrimination based on sexual orientation and gender identity in Indiana" but the group referred to by some as "Indiana Inequality" grants membership in the organization only to a handful of self-appointed leaders of Indiana's GLBT community to speak on behalf of the state's entire GLBT community. It has been heavily criticized for its exclusionary membership practices within the GLBT community and came under sharp criticism last year when it surprisingly announced its opposition to the Employment Non-Discrimination Act (ENDA) because it provided protection from discrimination in the employment context only and did not apply to other areas, such as housing and public accommodations.

Nytes and Keller, not surprisingly, both have co-chaired Indiana Equality's political action committeee and Keller currently sits on its board of directors. I was not surprised their opinion letter in the Star used an example of a Jewish-owned printing company since Nytes and her husband just happen to own a printing company. "While a Jewish printer might be compelled by the law to offer her services to somebody who claims to be an Aryan, we do not expect that the ordinance would compel her to print banners promoting a march by the Aryan Nations," the authors write. I think what Nytes is trying to say is that she and her husband should be free to deny service to any organization with whom they differ in opinion. We learned last year how willing she was to discriminate when she voted against the appointment of a white male Republican who works for Gov. Mitch Daniels to the Equal Employment Advisory Board, who also just happens to be gay. After I mentioned the irony of a member of Indiana Equality's leadership voting against the appointment of a gay person to the EEO board, a friend of Nytes called me to explain she wouldn't have voted against him if she had known he was gay. Why should that have mattered to her whether he was straight or gay?

And who would have thought Kentucky GOP Senate candidate Rand Paul and Jackie Nytes think alike on this issue? Paul created a firestorm earlier this year when he suggested the Civil Rights Act of 1964 and the Americans With Disabilities Act were overreaches with respect to public accommodations and should be changed to allow business owners to discriminate if they so pleased. For Nytes' point of reference, it has often been noted how Jewish business owners who operated general stores in small towns in the South during segregation were often the only businesses in town which would accommodate anyone who walked in the door regardless of race or religion, including the very white segregationists who paraded around in white sheets and burned crosses vilifying Jews, Blacks, Catholics and others with whom they disapproved.

Back to Just Cookies, nobody is calling on the city to kick the anti-gay bigoted Stocktons out of their spot in City Market. They are, however, asking the city to explain to them the city's human rights ordinance bars them from refusing service to individuals or groups because of their sexual orientation. If they want to continue operating their business on city-owned property, they need to understand they have to serve everyone, not just those who are straight or support their religious views. Otherwise, the city will have no choice but to boot them from the city-owned property. This should be a simple thing for the city to understand, particularly since it spends so much of our taxpayer dollars promoting the city as a destination spot for visitors and conventioneers.


Marycatherine Barton said...

Gary, re the application of the HRO to Just Cookies, you make a lot more sense than does either Jackie or Scott, so far. Thanks for your analysis.

Blog Admin said...

I'm surprised of some people who take the stand that anti-discrimination laws infringe on rights. Maybe I haven't looked in the right place, but the Wiki articles for the Civil Rights Act of 1964 and the ADA don't note any significant legal challenges to the laws themselves, only to the enforcement (or more precisely, violations of) of the law. And while the Moral Majority type crowd fought every step of the way for the HRO that are now on the books in several Indiana cities and cities across the nation, I haven't heard of any legal challenges to them.

And to those that remain convinced that Just Cookies refused to make a special order, their website specifically states they do "special orders". And another LGBT group, Get Equal, tried purchasing regular chocolate chip cookies (presumably with some sort of business card) and their purchase wasn't accepted.

I also agree that Just Cookies shouldn't be evicted if a reasonable solution can be worked out, but I've seen some evidence floating around that they are standing by their anti-gay position 100%. And if they're going to do that, I suspect it'll be much harder to bring them to the table with the LGBT community.

artfuggins said...

Nytes is merely a puppet of Mayor
Ballard. She is a menace to the LGBT community who has sold out her principles for who knows what. Nytes needs to be replaced.

Indy man said...

I would vote against this so called “Human Rights Ordinance” if I had the chance. Since it has been enacted into law, however, I agree with your well written analysis.

Morning Constitutional said...

The question of what the HRO says isn't necessarily the same as what a sponsor says was intended.

Once the interpretational question is decided, there remains another issue: as interpreted, either across the board ("on its face") or "as applied", is it constitutional?

It would seem that perhaps the latter question, balancing First Amendment interests against those concerning prohibiting discrimination, is really the one at issue here.

Unigov said...

I've got a more nuanced interpretation, try this on for size:

The HRO bars discrimination, but it does not require a vendor like Just Cookies to create cookies with a specific religious or political message. An atheist cannot demand that a Christian baker make a cake with a picture of Calvin urinating on the Bible. From the news coverage, Just Cookies didn't refuse to sell cookies to the woman from IUPUI because of *her* sexual orientation, they refused to make a product in support of something that violates their religious views. In this they are absolutely protected by the Constitution.

However, if as Indy Student mentions, that Just Cookies refused to sell in-stock cookies to a gay group, than Just Cookies can go to h*ll.

By the way, HRO applies to every public accommodation in Indianapolis, not just those in a contract with the city.

Gary R. Welsh said...

Unigov, I could understand Just Cookies' refusal if they had been asked to design a cupcake that was obscene, but on its face, a rainbow-colored cupcake is just that. If a group or individual asked for a rainbow-colored cupcake just because that's what they wanted without regards to any specific event, I doubt Just Cookies would have objected; it was the fact the specific request was for a gay-oriented group that served as the basis for denying the order. I don't know how anyone could conclude that is allowed. Scott Keller is a complete buffoon on this one. He needs to just shut up and go away. His political career is over. I hope he enjoyed that $29,000 he pocketed from his campaign account.

Joshua Bissey said...

Advance Indiana said,
"If a group or individual asked for a rainbow-colored cupcake just because that's what they wanted without regards to any specific event, I doubt Just Cookies would have objected; it was the fact the specific request was for a gay-oriented group that served as the basis for denying the order. I don't know how anyone could conclude that is allowed."

Actually, the bakers objected to the message they were being asked to convey. They have made clear that they will serve any customer, regardless of sexual orientation. As the HRO authors clearly explained, there is a difference between a customer's personal characteristics and the work they ask a business to perform for them. Sadly, those who fail to grasp this distinction will persist in their persecution of a couple of harmless bakers that were literally minding their own business.

Unigov said,
"From the news coverage, Just Cookies didn't refuse to sell cookies to the woman from IUPUI because of *her* sexual orientation, they refused to make a product in support of something that violates their religious views. In this they are absolutely protected by the Constitution."

Actually, the woman who placed the order was apparently heterosexual. The news story linked below includes a quotation from her "boyfriend." While that's not conclusive proof of anything, it's curious that so many articles refer to her as a "gay customer." Where's the evidence that she is? It would appear that Browning's order was refused simply because the bakers disagreed with it. There is no law against that.,0,2247943.story