03-26-12 Council Agenda & Packet

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1. Introduction In this memo, we would like to address issues surrounding the enforceability of the proposed amendment. First, we would like to make a distinction between "enforcing" and"enacting"the ordinance. When we discuss enforcement, we are talking about the procedures of the Human Rights Commission(HRC). The Human Rights Commission has been in existence for 50 years in the City of South Bend, and in fact, was formed BEFORE federal regulations required South Bend to do so. South Bend has a long tradition of working toward equitable treatment of all individuals. The HRC approaches complaints with respect for all parties involved, and their investigations are designed to look at both sides of the issue. They investigate and mediate based on their years of experience and knowledge of the principles of justice and equality. We rely upon them to enforce this ordinance,and we thank them for their service to the community. In the following explanation,we will discuss the points of law pertinent to the City of South Bend's authority to enact this amendment, as well as the relevant precedents that show the amendment will withstand legal challenges, should any arise. Many attorneys believe that not only does South Bend have the authority to prohibit discrimination based upon sexual orientation and gender identity,but also that because of that authority, the courts would find in favor of a municipality's power to protect its GLBT residents from discrimination within its borders. Question: Can the City of South Bend enact and enforce an ordinance prohibiting discrimination on the basis of sexual orientation and gender identity when the State's Civil Rights statute does not include sexual orientation or gender identity as protected classes? Answer: Yes. Based upon the Home Rule statute,the Civil Rights statute, the City's police powers and case law, the City of South Bend can enact an ordinance prohibiting discrimination based upon sexual orientation and gender identity. Since Indiana law specifically authorizes cities to adopt ordinances to effectuate the state's civil rights public policy, there is no conflict with existing state law. The enforcement mechanism for this ordinance is the City's Human Rights Commission. Indiana municipalities have the authority to create and amend their civil rights ordinances pursuant to their police powers, the Indiana Constitution and the Indiana Code, specifically the Home Rule Statute(IC 36-1-3) and the Indiana Civil Rights Statute (IC 22-9-1). The addition of protection based upon sexual orientation and gender identity does not conflict with the state's civil rights statute; rather, it supplements it. Indiana law specifically authorizes cities to adopt ordinances to effectuate the state's civil rights public policy. The courts have ruled that conflict exists only where an ordinance forbids that which a statue permits,NOT where an ordinance merely supplements the burdens already proposed by the statute. Those burdens must be logically consistent with the statutory purpose. The purpose of the Civil Rights statute is to end discrimination and provide equal opportunity in employment and housing for all of the state's citizens. 2