Is Carmel compromise a blueprint for state LGBT law?

The concept behind the compromise that Carmel is seeking to balance religious rights and gay rights could be poised to be part of a statewide solution.

But some experts say the way it is written could unwittingly lead to expanding discrimination in the city.

Carmel’s compromise would allow private business owners to refuse to provide wedding services for same-sex couples as part of the proposal to protect lesbian, gay, bisexual and transgender individuals from discrimination.

It’s an idea that some experts say state lawmakers and influencers will watch closely. But it’s one that might also draw legal scrutiny.

“I understand the desire to protect religious freedom,” said Indiana University law professor Robert Katz, “but the proposed amendments do so in a way that expands the ability of businesses that serve the public to discriminate on grounds that have nothing to do with religious belief.”

In waiting to see whether the state will move on the hotly contested issue, a handful of Indiana cities have taken on the task of writing sexual orientation and gender identity into local ordinances as protected classes. But with pushback from powerful social conservatives, they’re each left to find their own balance for religious opposition to same-sex marriages.

Carmel’s proposal attempts to directly address opponents’ primary concerns about devoutly Christian bakers or florists, for whom providing services for a same-sex wedding ceremony would violate deeply held beliefs.

“It’s a modest advancement, but it’s a major concession at the same time,” said Robert Dion, a political scientist at the University of Evansville. “In the language of law, they call it dignitary harm. It allows for the dignitary harm that the Supreme Court has already said is impermissible.

“It harms the dignity of a person,” he continued, “to go to a place of business and be told, ‘We don’t serve your kind.’ ”

The advocacy from Carmel’s Republican Mayor Jim Brainard for a nondiscrimination ordinance including sexual orientation and gender identity had already attracted attention in the GOP suburban stronghold. And how it unfolds now, Dion said, could be a microcosm of how a similar Statehouse conversation could go with a Republican supermajority and socially conservative Republican Gov. Mike Pence.

Andy Downs, a political scientist at Indiana University-Purdue University Fort Wayne, said Carmel’s exemptions for wedding services might hit a sweet spot for state lawmakers.

“If it is deemed to be standing on firm legal footing, or mildly firm legal footing,” he said, “I could see legislators saying, ‘There’s our out.’ It respects religious objection because you’re not being ‘forced’ to do something that is part of an official ceremony, and at the same time it limits discrimination.”

If Carmel ends up adopting the ordinance, supporters of such laws will likely point to the Republican city — and the economic interests driving the move — as an example in a statewide debate.

Carmel’s proposed ordinance also would ban discrimination against classes already protected under state and federal laws, such as race, religion and gender. It would carry a $500 per-day fine for each violation.

After hours of public comment Monday night, Brainard suggested adding some exemptions to the ordinance. One would allow “the refusal to provide off-business premises personal services,” which would appear to include wedding photographers, caterers and such. Another would allow “the refusal to create or produce custom products requested by customers,” which would seem to cover bakers and florists.

Carmel’s drafted ordinance, however, does not specify that religious reasons must be cited to use those or any other exemptions. Also, unlike some other cities, the exemptions don’t apply only to instances involving sexual orientation or gender identity, which some say could encourage discrimination against other protected classes, such as race and gender.

“Those exemptions are incredibly broad, and they would affect all of the protected classes,” said Jennifer Wagner, spokeswoman for Freedom Indiana, a grass-roots group campaigning for LGBT rights. “It could completely backfire and end up outlining ways for people to discriminate."

“From our vantage point,” she added, “that still allows a category of discrimination to be carved out in law. All they’re trying to do is say certain types of discrimination are OK.”

That said, if someone tried to use Carmel’s ordinance to argue it allows discrimination against other protected classes, it’s not likely to hold up in court. State laws ban discrimination based on race, for example, though not sexual orientation or gender identity.

The Indiana Family Institute, a conservative lobbying group that cited concerns over same-sex wedding scenarios in opposing Carmel’s proposal, did not return a call for comment Tuesday.

“We find ourselves in 2015 trying to wrap ourselves around whether gay and lesbian people as a group are comparable to religious groups or racial groups,” said Dion, the political scientist, who also chairs the Evansville Human Relations Commission. “And that’s a discussion that hasn’t been settled quite yet.”

Brainard did not respond to multiple messages seeking comment Tuesday. A council committee meeting to discuss the proposal was set for 5:30 p.m. Thursday. But The Star learned Tuesday evening that the meeting has tentatively been canceled, after the resignation of City Attorney Doug Haney.

It was not clear whether Haney’s resignation was related to the proposed ordinance.

On Wednesday, city spokeswoman Nancy Heck said Haney was placed on paid administrative leave for personal reasons, "unrelated to anything before city government."

Call Star reporter Stephanie Wang at (317) 444-6184. Follow her on Twitter: @stephaniewang.