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.