03-26-12 Council Agenda & Packet

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1. "Compelling Governmental interest" Some claim that South Bend could not enforce a law prohibiting discrimination against the GLBT community unless the City can prove in court that it has a "compelling governmental interest" in such a law, which is the highest level of proof that can be required in such a case. But that claim is simply false. Rather, all that South Bend would have to prove if it were sued is that the City had a reason to believe that the GLBT community needed that protection(called a "rational basis"). Indeed, this is the lowest level of proof that can be required in such a case. And the evidence of significant discrimination against the GLBT community in employment and housing in South Bend far exceeds the evidence the City would need to satisfy that low level of proof and to enforce such a law. The Constitution gives local government bodies like the Common Council a great deal of latitude to make local laws as it sees fit. There are constitutional limits on what a local government can do. But the proposed amendments to the South Bend ordinance come nowhere near those limits. We will explain why this is so below, examining each possible constitutional challenge that could conceivably involve a"compelling governmental interest"—challenges based on the First Amendment right to Free Exercise of Religion, the First Amendment right to Freedom of Association, and the Fourteenth Amendment right to equal protection of the laws. A. First Amendment Free Exercise of Religion The First Amendment protects the free exercise of religion. So if the Council passed this ordinance for the purpose of advancing a religious belief, then the Council would have to show that it had a "compelling governmental interest"for doing so. But the purpose of this ordinance is not to advance religion but to prevent discrimination in housing and employment. Accordingly, the First Amendment's Free Exercise of Religion Clause and its compelling governmental interest test have nothing to do with this ordinance. Instead, the Supreme Court has ruled that prohibiting discrimination against homosexuals is "well within"the power of local government when local government has a reason to believe they are the targets of discrimination. We'll explain this point in detail. The First Amendment to the United States Constitution states in pertinent part, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof..." The Fourteenth Amendment makes the clause applicable to states and municipalities. Any court faced with a free exercise challenge to a statute or ordinance must determine, as a threshold matter, if the challenged legislation is "a valid and neutral law of general applicability." Employment Div. Dept. of Human Resources of Oregon v Smith, 494 U.S. 872 (1990). If the ordinance is religion-neutral, generally applicable, and rationally related to some legitimate government interest, then the free exercise clause is not violated even if enforcement of the ordinance would result in an incidental burden on a particular religious practice.Id. at 884-