Will new 'civil rights' silence churches? In Iowa, the fear is real.

Des Moines, Iowa, Jul 9, 2016 / 05:44 am

An Iowa church fears the state civil rights commission could penalize it for preaching and following its views on homosexuality and transgender issues – including penalties for single-sex bathrooms.

The Iowa Civil Rights Commission has produced a self-described guide to Iowa law for public accommodations providers concerning sexual orientation and gender identity.

The brochure-sized guide says the 2007 Iowa Civil Rights Act applies to churches "sometimes." It acknowledged that the law does not apply to religious institutions in the matter of a "bona fide religious purpose."

"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)," the pamphlet says.

The pamphlet says the law bars discrimination on the basis of sexual orientation or gender identity in services, facilities or goods for any place of public accommodation. It bars harassment including "intentional use of names and pronouns inconsistent with a person's presented gender."

According to the commission, the law requires locker rooms, restrooms and living facilities in places of public accommodation to be open to persons based on their self-identified "gender identity."

Those who believe they have suffered discrimination may file a complaint with the civil rights commission, the pamphlet says, adding that it is designed for educational purposes only and is not intended to be legal advice.

The Fort Des Moines Church of Christ "fears that speaking publicly about the church's beliefs on human sexuality or making known its facility use policy could trigger enforcement action by the commission and substantial penalties," said Alliance Defending Freedom legal counsel Christina Holcomb.

"If this law is not challenged, then the commission retains unchecked power to violate basic constitutional rights," Holcomb told CNA July 6.

The Alliance Defending Freedom legal group said the commission's interpretation could ban churches from voicing their views if doing so would "directly or indirectly" make persons of any gender identity feel "unwelcome" in church services, events and other religious activities.

"Regardless of our personal views on human sexuality, we should all be able to agree that the state has overstepped its bounds when it tries to control the internal communications and operations of a church," Holcomb said. "These are the very types of intrusions that Jefferson's 'wall of separation between church and state' was designed to prevent."

The legal group filed a lawsuit on behalf of the Des Moines church against members of the Iowa Civil Rights Commission, the Iowa attorney general, and the city of Des Moines, which has a law similar to the State of Iowa's. The lawsuit is a "pre-enforcement challenge" intended to challenge a law before it is potentially used against the church.

"No church should have to live in fear that, at any time, the commission could declare that something the church said or did violated state law," Holcomb said. "No one, including church leaders, must wait for fines or punishment before challenging an unconstitutional law."

The lawsuit charged that the anti-discrimination law as interpreted by the civil rights commission would compel the church to "communicate government messages to which it objects" and force the church to "use its building in violation of its religious beliefs."

Some experts criticized the church's legal action, but acknowledged there was ground to believe the law could affect church operations.

Prof. Paul Gowder, a constitutional expert at the University of Iowa Law School, said it would be "blatantly unconstitutional" for state officials to try to regulate church sermons. He told the Des Moines Register it is "absurd on its face" to think the commission would prohibit a church from sermonizing.

However, he said access to church bathrooms by those who identify as transgender is more complicated, given jurisprudence that sees churches as non-exempt from general laws that apply to everyone under the U.S. Constitution.

"So I guess the honest answer to the bathroom question would be I am not sure," Gowder said.

Law professor Maura Strassberg of Drake University said the U.S. Supreme Court has ruled that public facilities' decisions on allowing someone to use a restroom are not considered free speech and would not be protected by the First Amendment.

She argued that there are situations where a preacher's remarks could become harassment.

"There is a line: You can go from, 'This is what God believes' … to 'You are bad, so we don't want you here'," she said.

However, Holcomb said these professors overlooked the "critical" constitutional principle of church autonomy.

"The Supreme Court has recognized again and again that the state has no jurisdiction to intrude into internal church matters, which include not only teaching its religious beliefs, but also operating its house of worship consistently with those beliefs," she said.

"Churches order their houses of worship to reflect and reinforce their religious teaching. They are not businesses, they are not public accommodations: they are inherently sacred spaces, and enjoy special protections under the religion clauses."

(Story continues below)

Ben Hammes, a spokesman for Iowa Gov. Terry Branstad responded to the legal challenge. He said that Governor Branstad "has confidence in the commission to enforce the laws we currently have that protect religious institutions' right to exercise a religious exemption while protecting personal rights."