03-26-12 Council Agenda & Packet

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The proposed federal legislation (Employment Non-Discrimination Act (ENDA) is not a certainty and is unlikely to be passed in an election year. It is also subject to modification before passage.' Therefore, consistency with a definition used by Indianapolis/Marion County for the past four years makes sense for South Bend. 3. Boy Scouts.case..exception. (2-127(e)) The case of Boy Scouts of America v. Dale, was decided by the U.S. Supreme'Court in 2000 and is authored by then Chief Justice Rehnquist (530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed2d 554). It involved a challenge by the Boy Scouts of America to New Jersey's law prohibiting discrimination on the basis of sexual orientation in places of public accommodation. The Boy Scouts of America excluded members because of sexual orientation based on its mission,statement. Mr. Dale, the plaintiff and a gay man, sought but was refused a position as an assistant scout master. The court ruled 514 for the Boy Scouts, albeit with vigorous dissenting opinions. Justice Rehnquist first noted that a "public accommodation" is generally a place where the public is invited such as "taverns, restaurants, retail shops and public library." The court noted that an entity such as Boy Scouts of America is not a "place," and that when public accommodation laws are used to extend beyond a "place" to a group or organization, the First Amendment speech and association rights of the group or organization must be respected. The Boy- Scouts case applies to organizations or groups in the context of public accommodation. Technically, because the 2010 South Bend ordinance does not afford protection from discrimination in public accommodation, § 2-127.1(e) could be deleted entirely. This would certainly eliminate any vagueness challenge, and the other Indiana ordinances similar to Bill 30-10 do not contain this exception. However, this exception (§ 2-127.1(e)) was requested and drafted in 2006 by an attorney of the local Boy Scouts organization working with City Attorney Charles S. Leone. The Poy Scout case involves a quasi-employment relationship, i.e., Mr. Dale's participation as a voluntary assistant scout master, so there is some rational basis for inclusion of this exception in Bill 30-10 which is limited to protection from employment discrimination on the basis of sexual orientation or gender identity. I suspect that many Common Council constituents would prefer to retain the exception as is rather than delete it in the interest of avoiding challenges of interpretation or vagueness. The reference in § 2-127.1(e) to the Boy Scouts of America case means that the exception of 2- 127.1(e) should be interpreted in light of a narrow, limited, exclusion for religious societies, orders, associations or institutions whose mission, practice, or belief would be impaired by hiring a person who is gay, lesbian, bi-sexual or transgender. Most employers in South Bend would not fall within this exception. (Note: The University of Notre. Dame and Saint Mary's College internally prohibit harassment due to sexual orientation.) Other employers which might assert this exception, may have fewer than six employees. As a matter of state law, the Human Rights Commission. has no authority over state agencies anyway, so claims under Bill 30-10 against IUSB, Ivy Tech, Workforce Development, the license branches, etc., could not be brought to the South Bend Human Rights Commission.