03-26-12 Council Agenda & Packet

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4. The proper standard of review is the easily met rational relationship standard. In light of the foregoing, it is highly unlikely that any Court would ever apply strict scrutiny in addressing an equal protection challenge to the proposed amendment. Instead, the applicable standard is"rational relationship," sometimes called "rational basis,"scrutiny,which the United States Supreme Court itself has described as "the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause." City of Dallas v. Staglin, 490 U.S. at 26. All South Bend would have to show is that the inclusion of sexual orientation and gender identity in the Ordinance has some rational relationship to a legitimate interest of the City of South Bend. Id.; City of Cleburne, 473 U.S. at 446. Moreover, "[i]n the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment." Id. Unquestionably, South Bend can show without difficulty that adding GLBT persons to the list of those against whom employers and landlords may not discriminate is rationally related to the City's legitimate interest in creating a level, discrimination free playing field for all of those who work or rent property in South Bend. IV. CONCLUSION Indiana municipalities have the statutory authority to create and amend their civil rights ordinances pursuant to the Indiana Home Rule Act and the Indiana Civil Rights Act. The Home Rule Act grants municipalities broad powers, and Indiana Courts have construed the Act broadly. Adding sexual orientation and gender identity as protected classes does not conflict with the Indiana Civil Rights Act. Indiana Courts have repeatedly ruled that conflict exists between a local ordinance and a state statute only where an ordinance forbids that which the statue permits, not where 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 12romotion of a ual opportunity without regard to race, religion, color, sex, disability, national origin, or ancestry through reasonable methods." The explicitly stated public policy underlying the Indiana Civil Rights Act is to end discrimination and provide equal opportunity in employment and housing for all of the state's citizens. The evidence presented to the South Bend City Council clearly shows that South Bend cannot promote equal opportunity for all of its citizens without adding sexual orientation and gender identity to the Ordinance. The proposed amendment is unquestionably logically consistent with the statutory purpose and broad public policy underlying the Indiana Civil Rights Act. Existing case law suggests that a federal equal protection challenge to the proposed amendment would meet with little success. Based on the legislative record described above, South Bend should be able to demonstrate a compelling governmental interest in protecting GLBT persons from discrimination. It is, however, highly unlikely that the City would have to make such a showing if faced with a federal equal protection challenge. The appropriate standard of review for a Court to apply when conducting an 16