03-26-12 Council Agenda & Packet

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Leval Concerns Regarding Adoption and Enforcement of the Proposed Amendment Adding Sexual Orientation and Gender Identity to the South Bend Human Rights Ordinance I. ISSUES PRESENTED AND SHORT ANSWERS A. Issues Two primary questions have been raised regarding the adoption and "enforceability"of the proposed amendment adding sexual orientation and gender identity as statuses protected by the South Bend Human Rights Ordinance (the "Ordinance"): ® Does the South Bend City Council have the power to amend the Ordinance to include classes of persons who are not currently protected by the Indiana Civil Rights Act, or would such an amendment be ultra vices—that is beyond the Council's power—and, therefore, void and outside the enforcement powers of the South Bend Human Rights Commission? 9 Is the proposed amendment likely to be upheld if it is challenged on federal equal protection grounds? B. Short answers The Indiana Home Rule Act grants the South Bend City Council very broad powers and allows it to make the proposed amendment so long as the proposed amendment does not conflict with the Indiana Civil Rights Act. No such conflict is apparent from either the plain language of the Indiana Civil Rights Act or Indiana case law. Enforcement by the Human Rights Commission should not be an issue so long as the proposed amendment itself is valid. There are also strong legal arguments against a federal equal protection challenge. The proper standard of review for such a challenge would be"rational relationship,"not "strict scrutiny" analysis. Consequently, focus on whether there is a "compelling governmental interest"necessitating the proposed amendment is misplaced. It should not be difficult for the City of South Bend to demonstrate a rational relationship between the amendment and the City's legitimate desire to protect gay, lesbian, bisexual, and transgendered("GLBT")persons from discrimination and create a level playing field in the areas of employment and housing.