Where Indiana law drew the line

1991 — 2020

The state case: Indiana's governing adult-entertainment litigation was about dancing, not social clubs, and it was not Fort Wayne's: in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), the Supreme Court upheld Indiana's public-indecency statute, Indiana Code § 35-45-4-1, as applied to nude dancing in two South Bend establishments. The statute's rule — that appearing nude in a public place is an offense, and that a members-only door does not by itself make a commercial club a private place — is the background law against which every Indiana adult club, Fort Wayne's included, has operated. No reported Indiana appellate case tests the statute, or any zoning code, against a swingers social club; on the record reached, the category was legislated about, in Fort Wayne in 2019, but never litigated.

The city's code: Fort Wayne's zoning ordinance has long sorted adult businesses into defined categories — "adult cabaret," "adult nightclub," and the like, at § 157.506 of the Fort Wayne Zoning Ordinance — as the federal court recited in 1407, LLC v. City of Fort Wayne (N.D. Ind., January 25, 2019), the zoning case over the long-time adult use at 1407 South Calhoun Street, told in the Bars & Nightclubs section. Those categories govern performance businesses. A couples' social club fit none of them, which is precisely why closing the Champagne Club required the council to write a new category in the summer of 2019 — and why, when the new category failed its vote, no existing line of Indiana or Fort Wayne law reached the club at all.

Sources:

1. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) — Indiana Code § 35-45-4-1 upheld as applied to nude dancing (South Bend; printed as the state case it is).
2. 1407, LLC v. City of Fort Wayne, No. 1:18-CV-224 (N.D. Ind. January 25, 2019) — the Fort Wayne Zoning Ordinance's adult-use definitions, § 157.506, as recited by the court; the case itself is cross-referenced to Bars & Nightclubs.
3. B&S of Fort Wayne, Inc. v. City of Fort Wayne (Ind. Ct. App. 2020) — Ordinance G-19-19 upheld; the cabaret litigation, cross-referenced.