South Bend Equality Tells Tribune: It's Enforcible

In a guest opinion column in today's South Bend Tribune, South Bend Equality organizer Catherine Pittman and employment law attorney Jane Ann Himsel set the newspaper straight on the issue of the enforceability of a city ordinance barring discrimination on the basis of sexual orientation or gender identity. The Tribune recently editorialized in support of the proposed human rights ordinance but urged the council to make it voluntary only under the premise that the city is without legal authority to enact an enforcible gay rights ordinance. Pittman and Himsel write:

Adding sexual orientation and gender identity to the ordinance will not cause the ordinance to conflict with the Indiana Civil Rights Act. Indiana appellate courts have repeatedly ruled that a local ordinance and a state statute are in conflict when the ordinance forbids that which the statute expressly permits, but not when an ordinance merely supplements the protections that the statute already provides. Such supplemental burdens need only be logically consistent with the statutory purpose.

The stated purpose of the Indiana Civil Rights Act is "the promotion of equal opportunity without regard to race, religion, color, sex, disability, national origin or ancestry through reasonable methods." The public policy underlying the Indiana Civil Rights Act is "to provide all citizens equal opportunity" in a variety of areas including employment and housing. The evidence presented to the Common Council shows that South Bend cannot promote equal opportunity for all of its citizens without adding sexual orientation and gender identity to the human rights ordinance. The proposed amendment does not conflict with state law: It is logically consistent with the statutory purpose and broad public policy underlying the Indiana Civil Rights Act. The current state of the law strongly favors enforceability.

The Tribune apparently based its original editorial position on a faulty legal memorandum written by a South Bend city attorney advising the council. That memorandum failed to even include an analysis of Indianapolis' mandatory non-discrimination ordinance. Instead, it selectively pointed only to ordinances adopted by other communities, like Fort Wayne, which provide for voluntary compliance only.