Where Indiana law drew the line

1991 — 2007

The governing case is the county's: Indiana's adult-entertainment law was fixed in a case that began in this county — in two South Bend establishments, not Mishawaka ones — and it is carried here at boundary size because the statute it upheld is the background law for every Indiana city in this history. 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: the establishments were businesses open to paying customers, the statute's rule for public places reached them through their own doors, and no membership arrangement proposed in that litigation would have taken them outside it. The case is told whole in South Bend's history, where the arrests happened. Its line for this section is the one the Fort Wayne and South Bend sections also run on: a members-only door does not by itself make a commercial club a private place.

The question asked twice, never here: Indiana's appellate courts have twice had to ask whether a club was genuinely private, and neither occasion was in this county. In Long v. State, 666 N.E.2d 1258 (Ind. Ct. App. 1996), a dancer at Regina's House of Dolls, arrested for indecency, argued the house was a private club outside the statute; as the later court recounts it, the membership card and application there were formalities extended to all comers, and the argument failed. In Broadhacker v. City of Indianapolis, 864 N.E.2d 372 (Ind. Ct. App., April 17, 2007) — the state's one reported decision testing a members-only sex club against a city ordinance, and Indianapolis's case, printed here at boundary size to mark where this city's record ends — Reel One, a club begun in 1992 whose patrons paid to view or participate in live sex acts, was sued under an Indianapolis ordinance declaring such a business a public nuisance in itself. The Court of Appeals reversed a summary judgment against the operators: Reel One had no signage, did not advertise, and admitted only members under a written agreement stating the club was not open to the public, so whether it was genuinely a private club was a real question of fact, and on that question the ordinance's reach turned. No reported Indiana appellate case tests the public indecency statute, or any zoning code, against a swingers social club. The category was legislated about — in this city's Chapter 125, in Indianapolis's nuisance code, in Fort Wayne's failed 2019 ban, told in that city's section — but a social club itself was never the litigant, and Mishawaka's own zoning code keeps the same boundary: its definition of "adult business" lists an adult bookstore, an adult mini motion picture theater, an adult motion picture theater, and a Class B cabaret, and nothing else.

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 establishments; printed as the state case it is, and told whole in South Bend's swingers section).
2. Broadhacker v. City of Indianapolis, 864 N.E.2d 372 (Ind. Ct. App., April 17, 2007), read first-hand — Reel One's 1992 founding, membership agreement, and unadvertised premises; Indianapolis Revised Code §§ 391-601 to 391-603; the reversal on the private-club question; and the case's account of Long v. State, 666 N.E.2d 1258 (Ind. Ct. App. 1996).
3. City of Mishawaka Code of Ordinances, ch. 137 (zoning), definitions — "adult business" as adult bookstore, adult mini motion picture theater, adult motion picture theater, and Class B cabaret.