Iowa commission to clarify public accommodations guidelines for churches

After two legal challenges and three days of national criticism of its interpretation of the Iowa Civil Rights Act, the Iowa Civil Rights Commission (ICRC) announced it would release revised guidelines for implementing the statute. But attorneys representing two churches said editing a controversial brochure will not repair a fundamentally flawed and unconstitutional law.

Word of the proposed changes to the online ICRC brochure Sexual Orientation and Gender Identity: A Public Accommodations Provider’s Guide to Iowa Law came late Thursday. Attorneys for First Liberty Institute and Alliance Defending Freedom (ADF) have filed challenges on behalf of Cornerstone World Outreach in Sioux City and Fort Des Moines Church of Christ in Des Moines, respectively, told me nothing less than full exemption from the law will satisfy their clients’ constitutionally guaranteed freedom of religion and speech.

“Cosmetic changes to the alarming language in one brochure won’t fix the unconstitutionality of the Iowa Civil Rights Act,” ADF legal counsel Christiana Holcomb told me. “The bottom line is that no state or local law should threaten free speech and the free exercise of religion as protected by the First Amendment, and the Iowa law does that, so ADF will continue to challenge the law.”

ADF, on behalf of Fort Des Moines Church of Christ (more commonly known as “The Fort”), filed a preemptive lawsuit Tuesday in the U.S. District Court for the Southern District of Iowa against the ICRC, ICRC executive director Kristin Johnson, Iowa Attorney General Tom Miller, and the City of Des Moines. The complaint asks the federal court to place a temporary restraining order on the application of the state statute and an identical one enacted by the City of Des Moines. The suit seeks relief from the law before it is applied.

At issue is the 2007 amendment to the 1965 Civil Rights Act that established sexual orientation and gender identity as protected classes, an amendment that only recently came to the attention of the two Iowa churches. Attorneys argue the statute’s broad wording and the commission’s interpretation of the law put the churches at odds with a law that elevates sexual expression above biblical fidelity and the First Amendment.

“We look forward to hearing what the Iowa Civil Rights Commission has to say,” Chelsey Youman, counsel and chief of staff for First Liberty, told me. “If they are ready to abandon their past position and agree to never enforce this law against a religious institution, our client will consider that a very good thing.”

Although no complaints have been filed against any Iowa churches in the nine years since the amendment went into effect, the published guidelines raised concerns and prompted the churches to seek legal action.

In response to transgender restroom access controversies across the country, members of The Fort began drafting a policy addressing the issue. In the process they discovered the 9-year-old statute and asked ADF to intervene on the church’s behalf.

Cary Gordon, Cornerstone’s senior pastor, approached First Liberty after he became aware of the ICRC brochure when other Iowa pastors “who were concerned about how the state was claiming authority to interfere with the sanctity of the church” contacted him, Kassie Dulin, First Liberty’s director of legal communications, told me.

“The state of Iowa really has no right to come inside of a religious facility and put us in the untenable position of playing ‘Mother may I?’ with how we use our facilities,” Gordon told KCAU, the ABC affiliate in Sioux City.

Youman sent a letter Tuesday on behalf of Cornerstone to the ICRC’s Johnson demanding the commission alter the brochure to indicate it would not apply the statute against churches and exempt them from enforcement action by the ICRC. A review of today’s revisions will determine if further legal actions is necessary.

In the meantime, Michael Demastus, pastor of The Fort, has censored his speech for fear of reprisals from the state, according to ADF’s Holcomb, who spoke on behalf of Demastus. “The church fears that it might be sanctioned if it talks publicly about its beliefs on human sexuality and gender identity,” she said.

Johnson, bewildered by the sudden attention to a 9-year-old law, said there have been no cases filed against churches or any effort by the ICRC to enforce the statute against any church or religious institution.

For the churches, the issue is not if, but when, the law will be applied.

“Iowa’s policy brochure shows an unprecedented intent to regulate how churches talk about their beliefs on gender as well as how they operate their facilities,” Stephanie Phillips, a judicial fellow for First Liberty, told me.

Phillips pointed to the commission’s response in the brochure to the question, “Does the [sexual orientation and gender identity] law apply to the church.” The original ICRC brochure states, “Sometimes. Iowa law provides that these protections do not apply to religious institutions with respect to any religion-based qualifications when such qualifications are related to bona fide religious purpose [sic]. Where qualifications are not related to a bona fide religious purpose, churches are still subject to the law’s provisions. (e.g. a child care facility operated at a church or a church service open to the public).”

Regarding “church service” Johnson told me, “If a church hosts non-religious activities for the public, it could be considered a public accommodation for the duration of time that activity is occurring. One example might be where a church acts as a polling place.”

But what qualifies as a “bona fide religious purpose”? The statute does not define the term, leaving that task to Iowa courts, Johnson said.

“Such emphasis highlights the Commission’s intention to not only heavily scrutinize the validity and sincerity religious doctrines of our client and other religious institutions, but also the very legitimacy of the church as a religious body,” Youman wrote in her letter to the ICRC.