FILED Sep 10 2020, 8:42 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE James Bopp, Jr. Libby Yin Goodknight Richard E. Coleson KRIEG DeVAULT LLP Amanda L. Narog Indianapolis, Indiana Melena S. Siebert The Bopp Law Firm, PC Jeffrey C. McDermott Terre Haute, Indiana Matthew C. Branic KRIEG DeVAULT LLP Carmel, Indiana
Douglas C. Haney City of Carmel Corporation Counsel Carmel, Indiana
Daniyal M. Habib Office of Corporation Counsel Indianapolis, Indiana
Curtis T. Hill, Jr. Attorney General Indianapolis, Indiana
Aaron T. Craft Benjamin M.L. Jones Deputy Attorneys General Indianapolis, Indiana
Michael M. Rouker City Attorney Bloomington, Indiana
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 1 of 25 Larry D. Allen Daniel A. Dixon Assistant City Attorney Bloomington, Indiana
Ann C. Coriden CORIDEN GLOVER, LLC Columbus, Indiana
Alan L. Whitted Columbus City Attorney Columbus, Indiana
IN THE COURT OF APPEALS OF INDIANA
Indiana Family Institute Inc., et September 10, 2020 al., Court of Appeals Case No. Appellants-Plaintiffs, 19A-MI-2991 Appeal from the Hamilton v. Superior Court The Honorable Michael A. Casati, City of Carmel, et al., Judge Appellees-Defendants. Trial Court Cause No. 29D01-1512-MI-10207
Altice, Judge.
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 2 of 25 Case Summary
[1] This appeal stems from the filing of a lawsuit in 2015 by The Indiana Family
Institute (IFI), Indiana Family Action (IFA), and American Family Association
(AFA) (collectively, “the Companies”), against the cities of Carmel,
Bloomington, Columbus, and Indianapolis (collectively, “the Cities”),
challenging the constitutionality of Indiana’s Religious Freedom Restoration
Act 1 (RFRA) and the Cities’ nondiscrimination ordinances.
[2] The Companies asserted that RFRA and the ordinances chilled their rights to
free speech and the free exercise of religion under both the federal and state
constitutions. More specifically, the Companies claimed that their policy of
excluding same sex couples from their religious-based education programs
constituted unlawful sexual orientation discrimination under the ordinances,
even though RFRA was designed to permit exclusions and exceptions to those
in their circumstances. In other words, the Companies claimed that because
they were not churches or other religious entities as defined in the legislation,
RFRA afforded them no protection, and their exclusion of same-sex couples
from their events would subject them to various penalties defined in the
ordinances, should the Cities choose to enforce them.
1 Ind. Code § 34-13-9-1 to -11.
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 3 of 25 [3] Summary judgment was granted in favor of the Cities and the Companies now
appeal, claiming that the trial court erred in determining that they lacked
standing to pursue their actions and in concluding that their claims were not
ripe.
[4] The Companies also argue that the trial court erred in refusing to take judicial
notice of various online magazine and newspaper articles involving the passage
of RFRA and a letter signed by several law professors addressed to the Indiana
Senate Judiciary Committee that purports to be an analysis of pending
legislation.
[5] We affirm.
Facts and Procedural History
A. The Companies
[6] The Companies are affiliated Christian advocacy organizations in Indiana that
promote what they believe to be “the biblical teaching . . . that marriage must
be between one man and one woman and sexual relations must be within that
marriage context.” Appellees’ Joint Appendix Vol. V at 133-36. The Companies
maintain that permitting same sex couples to attend their otherwise public
programs would alter their “pro-traditional family message.” Appellant AFA’s
brief at 18. Hence, they contend their policy is to exclude those known to be in
same sex marriages from their workshops, presentations, and fundraising
events.
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 4 of 25 [7] IFI is a nonprofit corporation founded in 1989 and is based in Carmel. One of
IFI’s programs is the Hoosier Leadership Series (HLS) that focuses on the well-
being and health of Indiana families. HLS is designed to connect “conservative
leaders from around Indiana as part of a movement to impact the social,
cultural, political, and spiritual landscape of Indiana.” Appellant IFI and IFA’s
Brief at 13.
[8] HLS events including banquets and presentations are not open to the public and
interested individuals who are interested in HLS’s program submit written
application to IFI and undergo personal interviews. Applicants are not
screened about their religious beliefs or sexual orientation, and IFI has not
rejected anyone from participating in the HLS program on these bases.
[9] IFI president Curt Smith acknowledged that IFI would not necessarily know
about the participants’ sexual orientation, and he admitted that the organization
has “served many gay people over the years.” Appellees’ Joint Appendix Vol. II at
238. Any RSVP process that IFI uses is only “for head count planning
purpose[s].” Id. at 226. Although members of IFI and participants in the HLS
series must meet “ethical” standards, those qualifications refer to characteristics
that include “honesty, punctuality, and respect.” Id. In fact, IFI educates
“everyone who will listen” to its message. Id. at 84.
[10] Hoosier Commitment is a marriage enrichment program taught by IFI staff. Its
services were offered to incarcerated and low-income individuals. Welfare
agencies referred their own clientele to IFI for participation in the Hoosier
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 5 of 25 Commitment program, and the jails identified participants from within their
populations. Classes were initially offered in 2010, and the program was
funded in part by a one-time grant from the federal government. That grant
expired in 2013, and IFI has not offered a similar program since. Smith stated
that re-starting Hoosier Commitment would require an act of Congress to fund
it, yet that program was not presently a “primary focus” of IFI. Appellees’ Joint
Appendix Vol. IX at 97, 99-100.
[11] IFA—the advocacy arm of IFI—is also based in Carmel. It educates the public
about life, marriage, and religious freedom issues. IFA’s income varies each
year and is primarily generated from donations. Its work is election oriented,
and it has not held an event since 2012. Moreover, IFA has not had an
employee—nor has it interviewed anyone for a position of employment—since
hiring two temporary field directors in 2012.
[12] Due to limited funding, IFA’s only activities in 2018 were completing a voter
guide and mailing postcards “to educate voters on specific issues.” Appellees’
Joint Appendix Vol. II at 87. IFA averred that it might employ “5-6 more field
staff in 2018 . . . [for the purpose of educating voters] throughout the state. . . .”
Appellants’ Appendix at 66.
[13] The directors and employees of both organizations are required to sign
statements of faith affirming their belief in—and willingness to abide by—
Christian principles, including biblical teachings on marriage and human
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 6 of 25 sexuality. Neither IFA nor IFI will employ individuals who do not uphold and
share these principles.
[14] Like IFI, IFA has no “test” as to whom they will share their message. Appellees’
Joint Appendix Vol. II at 87-88. To be sure, IFA’s representatives made it clear
everyone is welcome to “come and learn and listen quietly to what . . . IFA’s
views were on . . . the Biblical views of marriage or sexuality, or learn about the
candidates and issues that were important to IFA.” Appellees’ Joint Appendix
Vol. VI at 26-27. IFA does not inquire about attendees’ religious beliefs or
sexual orientation as a precondition of being admitted and it does not “check or
ask about sexual orientation” at the door. Appellees’ Joint Appendix Vol. II at 87.
[15] IFA and IFI maintain that they may offer educational programs and services to
the public in Carmel, Columbus, and Bloomington at some point in the future.
However, they will not do so “unless the ordinances are enjoined” because they
are “at risk of facing penalties if the ordinances are enforced.” Appellant IFI and
IFA’s Brief at 17.
[16] AFA, located in Indianapolis, was organized in 1993. For over fifteen years,
AFA has advocated a “pro-traditional” family message through its education
programs. Appellants’ Appendix Vol. II at 54. AFA also follows the biblical
teaching on marriage and human sexuality. And like IFI, the board of directors
and employees of AFA must sign a statement of faith, affirming their belief in
Christian principles.
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 7 of 25 [17] AFA has hosted various “grassroots training conferences” that “teach people
how to be more involved in the political process through either elections or
contacting their legislator or informing people in their church about the issues.”
Id. at 147–48. AFA uses a conference room in its building for meetings and
discussions of various issues, and it reserves the right to exclude those who are
known to be in same sex marriages. The designated evidence shows, however,
that AFA has not actually excluded anyone from participating in the training
conferences because of sexual orientation or religious belief.
[18] Other than hosting an anti-pornography conference in the early 2000s, AFA has
not offered educational services or programs in Columbus. Nonetheless, AFA
claims that it intends to “host educational programs and events . . . in
Indianapolis, Bloomington, and Columbus. . . .” Appellant’s Appendix Vol. II at
71.
B. RFRA and the Ordinances
[19] RFRA, enacted in 2015, applies to all of the Cities and their ordinances. See
Ind. Code § 34-13-9-1. It provides that “a governmental entity may not
substantially burden a person’s exercise of religion, even if the burden results
from a rule of general applicability.” I.C. § 34-13-9-8. RFRA includes various
antidiscrimination safeguards, in that it does not
authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin,
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 8 of 25 disability, sex, sexual orientation, gender identity, or United States military service.
I.C. § 34-13-9-0.7 (emphasis added). Under RFRA, a “provider” is defined as
“one . . . or more individuals, partnerships, associations, organizations, limited
liability companies, corporations, and other organized groups of persons,” but it
does not include “[a]church or other nonprofit religious organization or society,
including an affiliated school that is exempt from federal taxation . . . or “[a]
rabbi, priest, preacher, minister, pastor or designee of a church or other
nonprofit religious organization or society when the individual is engaged in a
religious or affiliated educational function of the church or other nonprofit
religious organization or society.” I.C. § 34-13-9-7.5.
[20] The “exercise of religion” is defined in RFRA as “any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.” I.C. §
34-13-9-5 (emphasis added). And “person” under RFRA includes:
(1) An individual.
(2) An organization, a religious society, a church, a body of communicants, or a group organized and operated primarily for religious purposes.
(3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that:
(A) may sue and be sued; and
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 9 of 25 (B) exercises practices that are compelled or limited by a system of religious belief held by:
(i) an individual; or
(ii) the individuals;
who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.
I.C. § 34-13-9-7. A person may assert a RFRA “violation or impending
violation as a claim or defense” and, although a governmental entity is not
required to be a party, it may intervene in the action. I.C. § 34-13-9-9.
[21] In addition to RFRA, the Cities have their own ordinances that provide against
discriminatory practices that include sexual orientation and gender identity.
For instance, the Columbus City Code (CCC) bars “discriminatory practices”
with regard to “education” and “public accommodations.” CCC § 9.24.020.
The ordinance’s “discriminatory practice” provision prohibits “[t]he exclusion
of an individual from equal opportunities because of . . . sexual orientation . . . ;
or a system which excludes individuals from equal opportunities because of . . .
sexual orientation . . . .” Id. at 9.24.010. Under Columbus’s ordinance, an
“educational institution” includes all public and private school and training
centers with a few exceptions that are “supported in whole or in part by state
funds.” It also defines a “public accommodation” as “any establishment which
caters or offers its services or facilities or goods to the general public.” Id.
[22] The sole exemptions under the Columbus ordinance permit a “religious
organization, association or society or any nonprofit institution or organization
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 10 of 25 operated, supervised or controlled by or in conjunction with a religious
organization, association or society” to:
A. [limit] the sale, rental or occupancy of dwellings that it owns or operates for other than a commercial purpose to persons of the same religion; or
B. [give] preference to persons of the same religion, unless membership in such religion is restricted because of race, color, sex, disability, national origin, religion, ancestry, sexual orientation, gender identity or age.
Id. at § 9.28.030. 2
[23] The Bloomington Municipal Code (BMC) also bans “discriminatory practices”
as to “education” and “access to public accommodations.” BMC § 2.21.020.
“Discriminatory practice”—relevant to the circumstances here—is defined as
“the exclusion of a person by another person from equal opportunities because
of . . . sexual orientation . . . ; or a system which excludes persons from equal
opportunities because of . . . sexual orientation . . . .” Id. at 2.21.030(10).
Although the ordinance does not define the term “education,” an
“[e]ducational institution” under Bloomington’s ordinance includes all public
and private schools and training centers, except for certain state agencies listed
in the ordinance. And “public accommodation” means “any establishment
2 This exemption applies only to § 9.28 (“Housing Discrimination”) and is not applicable to § 9.24 (“Discrimination Generally”).
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 11 of 25 which offers its services, facilities, or goods to the general public.” BMC §
2.21.030(21). There is no specific religious entity exemption in the BMC.
[24] Carmel’s ordinance prohibits discrimination in areas that include “program[s] .
. . provided to the general public[.]” Carmel City Code § 6-8(a). The
Ordinance states that
no . . . entity located within, or conducting business within, the City’s corporate limits shall discriminate against any other person . . . the . . . opportunity to participate in or enter into a place of business . . . and/or participate in or obtain any program, service, or amenity provided to the general public on the basis of . . . race, color, religion, national origin, gender, disability, sexual orientation, gender identity or expression, family or marital status, ancestry, age, and/or veteran status.
Id. The Carmel ordinance sets forth the following exclusions:
(1) Religious worship and clergy while engaged in religious duties or activities; however, business activities by religious institutions or clergy are not excepted.
(2) A not-for-profit membership club organized exclusively for fraternal or religious purposes and/or any non-for-profit social club that is not open to the general public, so long as the same is exempt from taxation. . . .
Id. at § 6-8(d)(1).
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 12 of 25 [25] Indianapolis’s ordinance prevents “any discriminatory practice . . . which
relates to . . . public accommodations.” RCI § 581-401. “Discriminatory
practice” under the ordinance means “exclusion from or failure or refusal to
extend to any person equal opportunities or any difference in the treatment of
any person by reason of . . . sexual orientation . . . . ” RC1 § 581-103(b). Like
the other ordinances, “public accommodation” refers to “an establishment
which caters to or offers its services, facilities or goods to the general public.”
Id.
[26] The Ordinance exempts:
(a) any non-profit corporation, or association organized exclusively for fraternal or religious purposes, or to any school, education, charitable or religious institution owned or conducted by, or affiliated with, a church or religious institution, [] or any exclusively social club, corporation or association that is not organized for profit and is not in fact open to the general public.”
RC1 § 581—404 (emphasis added).
[27] Against this backdrop, the Companies assert that the ordinances govern their
activities because the Companies are establishments that conduct education and
training programs and offer services to the general public. The Companies also
maintain that they do not fall within the exemptions and exclusions in the
ordinances because they are not organized exclusively for religious purposes; nor
are they owned, conducted by, or affiliated with, a church or religious
institution. Thus, the Companies’ policy of excluding same-sex couples from
attending their programs amounts to an unlawful discriminatory practice that Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 13 of 25 subjects the Companies to substantial fines and other costs for violating the
ordinances, should they choose to present their programs and conduct their
events in the Cities.
[28] Since the enactment of the ordinances, the Companies have not faced—nor are
they facing—any credible threat of prosecution. No complaints have been
lodged against the Companies, and they have never been assessed penalties or
fines under the ordinances. Nonetheless, in 2016, 3 the Companies filed a
complaint against the Cities and the State seeking declaratory and injunctive
relief on the grounds that the ordinances inhibited their freedom of speech,
religion, and right to expressive association under the First Amendment to the
United States Constitution. More particularly, the Companies asserted that the
Cities “chilled” their First Amendment rights because their activities do not fall
within any of the exceptions or exemptions under the ordinances. Even though
the Companies acknowledge that they are not churches or other nonprofit
religious organizations, they claim to hold the same “traditional religious
beliefs” as those that do fall within the exceptions and, therefore, deserve the
same protection that the ordinances and RFRA provide. Appellants’ Appendix
Vol. II at 76. And because the Companies have a policy of excluding same sex
married couples from events that are otherwise public, they are engaging in
sexual orientation discrimination under the ordinances, thus putting them “at
3 The Companies’ initial complaint against Carmel and Indianapolis was filed on December 11, 2015. They subsequently amended the complaint on November 29, 2016, adding Bloomington, Columbus, and the State as defendants.
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 14 of 25 credible risk of enforcement and penalties.” Appellants’ Appendix Vol. II at 71.
As a result, the Companies alleged that their due process and equal protection
rights also were violated under both the state and federal constitutions.
[29] On January 29, 2019, the Companies moved for summary judgment, claiming
that because RFRA and the ordinances prohibit them from excluding same sex
couples from participating in their events without the threat of prosecution, they
were unlawfully stripped of RFRA’s heightened protections, and the ordinances
chilled their rights to free speech and the free exercise of religion under the First
Amendment as a matter of law.
[30] The Companies also requested the trial court to take judicial notice of RFRA,
the ordinances, and the United States Constitution, along with various
newspaper and magazine articles and a letter signed by various law school
professors regarding pending legislation, as evidence in support of their motion
for summary judgment.
[31] The Cities filed cross motions for summary judgment, asserting that the
Companies lacked standing and that their claims were not ripe for
consideration. The Cities also objected to the Companies’ judicial notice
request and filed a motion to strike.
[32] Following a hearing, the trial court entered summary judgment for the Cities on
November 22, 2019, concluding that the Companies lacked standing and that
their claims were not ripe for consideration because they are not at imminent
risk of suffering injury. The trial court granted the Companies’ request to take
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 15 of 25 judicial notice of the state and federal constitutions and the ordinances but
denied their request as to the other documents.
[33] The Companies now appeal.
Discussion and Decision
I. Standard of Review
[34] On appeal from a grant of summary judgment, we stand in the shoes of the trial
court and apply a de novo standard of review. Poiry v. City of New Haven, 113
N.E.3d 1236, 1239 (Ind. Ct. App. 2018). Summary judgment is appropriate
where the designated evidence establishes that there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.
Row v. Holt, 864 N.E.2d 1011, 1013 (Ind. 2007). “A fact is ‘material’ if its
resolution would affect the outcome of the case, and an issue is ‘genuine’ if a
trier of fact is required to resolve the parties’ differing accounts of the truth, or if
the undisputed material facts support conflicting reasonable inferences.”
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
[35] We consider only those materials properly designated pursuant to Indiana Trial
Rule 56 and construe all factual inferences and resolve all doubts in favor of the
non-moving party. Young v. Hood’s Gardens Inc., 24 N.E.3d 421, 424 (Ind.
2015). We may affirm an entry of summary judgment “if it can be sustained
on any theory or basis in the record.” DiMaggio v. Rosario, 52 N.E.3d 896, 904
(Ind. Ct. App. 2016), trans. denied. The fact that the parties have filed cross-
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 16 of 25 motions for summary judgment does not alter this standard of review or change
our analysis: the party that lost in the trial court has the burden of persuading us
that the trial court erred. Denson v. Estate of Dillard, 116 N.E.3d 535, 539 (Ind.
Ct. App. 2018).
II. The Companies’ Arguments
[36] The Companies argue that the trial court erred in concluding that they lacked
standing to bring their actions against the Cities and determining that their
claims were not ripe. The Companies contend that even though the Cities
have not enforced their ordinances against them and have not been subject to
any penalties, they are entitled to pursue declaratory and injunctive relief
because their rights to free speech, free exercise of religion, and expressive-
association will be burdened and “chilled,” should they hold future events in
the Cities. Appellant IFI’s Brief at 17.
[37] In general, the doctrine of standing constitutes a significant restraint on the
ability of Indiana courts to act. Jones v. Sullivan, 703 N.E.2d 1102, 1105 (Ind.
Ct. App. 1998). Standing is a threshold question that “asks whether the
plaintiff is the proper person to invoke a court’s authority.” Horner v. Curry, 125
N.E.3d 584, 589 (Ind. 2019). Standing ensures “the resolution of real issues
through vigorous litigation” rather than “academic debate or mere abstract
speculation.” Id. Even when some constitutionally protected interest is
involved, a party must show adequate injury or the immediate danger of
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 17 of 25 sustaining some injury to establish standing. Id. at 589; see also Doe v. Adams, 53
N.E.3d 483, 497 (Ind. Ct. App. 2016), trans. denied.
[38] To establish standing, a party must show: (1) an “injury in fact,” i.e., an
invasion of a legally protected interest that is concrete, particularized, actual
and imminent; (2) a causal connection between the injury and the conduct
complained of; and (3) the likelihood that the injury will be redressed by a
favorable decision. Hulse v. Indiana State Fair Bd., 94 N.E.3d 726, 730-31 (Ind.
Ct. App. 2018) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
If a party lacks standing, a court has no authority to act. Jones v. Sullivan, 703
N.E.2d 1102, 1106 (Ind. Ct. App. 1998).
[39] Closely related to standing is the doctrine of ripeness, which involves the timing
of judicial review and the principle that judicial “machinery should be
conserved for problems that are real and present or imminent, not squandered
on problems that are abstract or hypothetical or remote.” In re Paternity of
M.G.S., 756 N.E.2d 990, 1004 (Ind. Ct. App. 2001), trans. denied. A claim is not
ripe for adjudication if it rests upon contingent future events “that may not
occur as anticipated, or . . . may not occur at all.” Texas v. United States, 523
U.S. 296, 300 (1988). A claim must be ripe for consideration or we will not
review it. Garau Germano, P.C. v. Robertson, 133 N.E.3d 161, 167 (Ind. Ct. App.
2019), trans. denied.
[40] Relevant here is this Court’s decision in Hulse, where the plaintiff filed a
complaint for declaratory and injunctive relief asserting that a condition of
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 18 of 25 participating in the Indiana State Fair’s china painting competition violated her
First Amendment rights. Hulse, 94 N.E.3d at 728. Hulse alleged that she
suffered injury because she “may be ban[ned]” from the china painting
competition “if she expresse[d] disagreement with the results” of the
competition and that fear “chilled” her speech. Id. at 731.
[41] In awarding judgment for the State Fair Board, a panel of this court determined
that “chilled” speech “may suffice” to establish standing only if the “threatened
injury is certainly impending, or there is a substantial risk that the harm will
occur.” Id. (quoting Kiser v. Reitz, 765 F.3d 601, 607–08 (6th Cir. 2014)
(additional citations omitted)). To make this showing, the plaintiff must show
an “intention to engage in a course of conduct” with an arguable constitutional
dimension, proscribed by a statute, and a “credible threat of prosecution.” Id.
We concluded that Hulse lacked standing to pursue her claims because she
could not demonstrate that her course of conduct was proscribed by statute, i.e.,
that the terms and conditions with regard to the china painting expressly
permitted individuals to submit grievances that pertained to the judging. Id. at
732.
[42] We also observed that the evidence did not show that Hulse faced a credible
threat of prosecution. Id. at 732. To the contrary, it was established that even
after Hulse submitted grievances in 2015, she participated in the fair in 2016. Id.
As a result, we concluded that “Hulse has not asserted an imminent injury in
fact necessary to acquire standing to challenge [the Rule] as it applies to her”
and, therefore, lacked standing. Id. at 732.
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 19 of 25 [43] Considering the circumstances here in relation to those in Hulse, 4 we note that
the Companies’ own designated evidence establishes that no one has ever been
excluded from their events. Moreover, the Companies cannot point to any
exclusion policies that were in place and, as noted above, there were no
inquiries about the attendees’ religious beliefs or views on human sexuality
prior to admission at the events. In fact, the Companies emphasized that all
individuals are welcome to attend their programs, and only those who are
disruptive or “actively advocate” against the issues the Companies support are
subject to exclusion. Appellees’ Joint Appendix Vol. IV at 54. The Companies do
not require event attendees to share the same religious beliefs, and the
Companies’ own designated evidence demonstrates that they have permitted
“many gay people” to attend their programs. Appellees’ Joint Appendix Vol. II at
85-86. In fact, the Companies “want people who don’t agree” with their
religious views to attend their events and hear their pro-traditional-family
message. Id. at 226.
[44] Although the Companies claim that their rights to hold events in the Cites are
chilled because of the ordinances’ failure to exempt their activities from
4 We will assume for argument’s sake that the Companies meet the definition of “public accommodations” under the Cities’ ordinances. As noted above, while the ordinances generally include establishments that offer services, facilities, or goods to the general public, two of IFI’s programs—Hoosier Commitment and HLS—have not been open to the general public, thus excluding those programs from the ordinances’ definitions of “public accommodations.” Participation in HLS is limited to a small group of “high-capacity leaders” who are “selected . . . through a competitive selection process” each year. Appellees’ Appendix Vol. II at 82-83. When Hoosier Commitment was operational, it received attendee referrals from welfare agencies and jails. Moreover, Hoosier Commitment has been defunct since 2013.
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 20 of 25 enforcement, none of the Companies have been the subject of a complaint or
investigation; nor have they been threatened with sanctions or penalties. And
there is no designated evidence establishing that the Companies have received,
or are likely to receive, any notice of violations.
[45] The Companies continue to hold their training events in the Cities since the
passage of the ordinances, and they have not altered their presentations and
programs in any fashion. In short, the Companies remain free, without
interference, to express their religious views on marriage and human sexuality
as they always have. Just like the plaintiff in Hulse, the Companies have failed
to show how the ordinances subjected them to an imminent threat of harm or
that they faced a credible threat of prosecution.
[46] Nonetheless, the Companies claim that they have standing to pursue their
action because they might hold events in the future in some of the Cities. The
Companies contend that if they hold such events and advance their beliefs to a
public audience, they will have engaged in sexual orientation discrimination if
they choose to exclude individuals who do not hold those same beliefs.
[47] Courts have occasionally allowed pre-enforcement litigation to proceed when
the plaintiffs have alleged an “actual fear” that the law would be enforced
against them. See, e.g., Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 21 of 25 (1988) (permitting an action to proceed in federal court 5 where the plaintiffs-
booksellers introduced several books for display and held a well-founded fear
that they would be prosecuted for doing so under a state statute that prohibited
any person “to knowingly display for commercial purposes in a manner
whereby juveniles may examine and peruse” certain visual or written sexual or
sadomasochistic material that is harmful to juveniles).
[48] In the present circumstances, however, the Companies only allege that they
might offer programs and activities in some of the Cities. Such anticipated
plans are wholly speculative and hypothetical, in that the Companies have not
identified programs they might offer, when they might be offered, or how the
events would even be funded. In short, the record is devoid of any details from
which a court could determine whether the Companies’ anticipated future
events are subject to the ordinances, much less whether the federal or state
constitutions would be violated.
[49] Finally, we reject the Companies’ contention that their action should be
permitted to proceed under the public standing doctrine because their claims
5 The same holds true under federal standards with regard to pre-enforcement actions, in that a plaintiff who seeks prospective relief must establish that he is in immediate danger of sustaining a direct injury “as the result of the challenged official conduct, and [that] the injury or threat of injury [is] both real and immediate.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal quotations omitted). The standing requirement is not met by showing some “conjectural” or “hypothetical” injury, O’Shea v. Littleton, 414 U.S. 488, 494 (1974), or an injury that is merely “subjective.” Laird v. Tatum, 408 U.S. 1, 13-14 (1972).
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 22 of 25 against the Cities involves the enforcement of a “public” rather than a private
right. Appellant AFA’s Brief at 42.
[50] In State ex rel. Steinke v. Coriden, this court observed that
[t]here are certain situations in which public rather than private rights are at issue and hold that the usual standards for establishing standing need not be met. This Court held in those cases that when a case involves enforcement of a public rather than a private right the plaintiff need not have a special interest in the matter nor be a public official. Specifically, the public standing doctrine eliminates the requirement that the relator have an interest in the outcome of the litigation different from that of the general public.
831 N.E.2d 751, 756 (Ind. Ct. App. 2005) (quoting State ex rel. Cittadine v.
Indiana Dep’t of Transp., 790 N.E.2d 978, 979 (Ind. 2003)), trans. denied.
Although the Coriden court did not specifically define “public right” in this
context, it cited a number of examples where such a right was found to exist.
See, e.g., Miller v. City of Evansville, 244 Ind. 1, 189 N.E.2d 823 (Ind. 1963) (a
resident-taxpayer had a public right where the city’s waterworks department
was allegedly not authorized to contract for construction of equipment for
fluoridation of public drinking water); Davis Const. Co. v. Bd. of Comm’rs of Boone
County, 192 Ind. 144, 132 N.E. 629 (1921) (taxpayer had public right where an
allegedly unconstitutional statute sought to impose property tax in the district
where he lived and he owned property that was subject to assessment); Brooks v.
State, ex rel. Singer, 162 Ind. 568, 70 N.E. 980 (1904) (a citizen-voter of Ripley
County had a public interest in the constitutional apportionment of senators
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 23 of 25 and representatives throughout the state); Hamilton v. State ex rel. Bates, 3 Ind.
452 (1852) (holding that a citizen-taxpayer of Marion County has a public
interest in the county auditor correctly discharging the duties of his office).
[51] Circumstances like the above are not present here. More specifically, RFRA
operates to vindicate a private right to religious exercise. See Ind. Code § 34-13-
9-8(b). And the injury requirement does not effectively foreclose a challenge to
RFRA “by anyone.” See Coriden, 831 N.E.2d at 756. Instead, a party would
have standing to challenge RFRA or its antidiscrimination safeguards if it was
notified that it had, or was imminently likely to, violate a state statute or city
ordinance and the legislation “substantially burdened” their religious exercise.
Ind. Code § 34-13-9-8.
[52] Additionally, as explained above, the Companies have alleged only a
hypothetical intention to offer their programs and events in the Cities, along
with a vague statement that certain individuals could be excluded from
attending their events. They do not have a substantial present interest in
offering their programs or in excluding individuals from their events. For all
these reasons, the Companies may not avail themselves of the public standing
doctrine and avoid the requirement of an actual or imminent injury. See
Coriden, 831 N.E.2d at 756.
[53] In sum, the Companies’ own designated evidence establishes that the Cities
have neither interfered with nor chilled their First Amendment rights. Even
assuming that the Companies and their programs fall within the provisions of
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 24 of 25 the Cities’ ordinances, and their activities are not exempt from enforcement
through RFRA safeguards or the ordinances’ exceptions, there is no threat of an
impending injury or a substantial risk that harm will occur.
[54] Moreover, notwithstanding the Companies’ claimed policy of exclusion, the
Companies have made it clear that everyone is welcome to attend their events
and hear their message, regardless of sexual orientation or religious beliefs. In
short, there is simply no reason to believe that RFRA and the Cities’ ordinances
had any effect—or will have any effect—on the Companies and their activities.
For all these reasons, the trial court properly entered summary judgment for the
Cities. 6
[55] Judgment affirmed.
Bailey, J. and Crone, J., concur.
6 As noted above, the Companies also challenged the trial court’s denial of their requests for judicial notice of various documents including an online magazine article, several newspaper articles, and a letter signed by a number of law professors regarding the passage of pending legislation. We need not address those arguments, inasmuch as the evidentiary rulings that the Companies challenge address the merits of their contentions, and the trial court’s decision to deny the Companies’ request to take judicial notice of that material has no bearing on the threshold question of standing.
Court of Appeals of Indiana | Opinion 19A-MI-2991 | September 10, 2020 Page 25 of 25