Bathroom debate invades church walls in ‘unprecedented’ case

DES MOINES, Iowa – Dozens of supporters and pastors across denominational lines sat in the U.S. District Court for the Southern District of Iowa last week, in what lawyers for both sides called an “unprecedented” case for religious liberty in America.

“Iowa really is an outlier,” explained Steve O’Ban, an Alliance Defending Freedom attorney representing Fort Des Moines Church of Christ in his opening remarks, “where a government enforcer is seeking to regulate the building of a religious organizations in violation of its religious beliefs.”

At stake in the case of Fort Des Moines Church of Christ v. Jackson, argued O’Ban, is whether sexual orientation and gender identity, or SOGI, provisions in state civil rights codes could grant government a “green light to regulate churches.”

The core of the argument is whether or not churches can be considered “public accommodations” and therefore be guilty of “discrimination” if, to borrow language directly from Iowa Code 216.7, they make a person feel “unwelcome” or “not acceptable” because of their gender identity.

In other words, can the state deem a church a “public accommodation” and therefore compel the congregation to open its womens’ bathrooms to biological men who “identify” as female? Or, more liberally applied, could the government charge churches with “discrimination” if their signs, literature, or even sermons make a homosexual person feel “not acceptable”?

How is a secular court qualified to determine which church activities are protected by the First Amendment and which are not?

Lawyers representing the City of Des Moines and the Iowa Civil Rights Commission, on the other hand, argued the case should be dismissed because there are no churches in Iowa currently under investigation for violating the public accommodation laws. Assistant Attorney General Molly Weber argued Fort Des Moines Church of Christ’s case is “hypothetical” and based on “fear.”

The Iowa Civil Rights Code already has an exemption, Weber said, for church activities with, according to the Code’s language, “a bona fide religious purpose.”

“If [an activity is] protected by the First Amendment it’s exempt,” Weber argued, “[and] if not protected by the First Amendment, it’s not exempt.”

But that, the ADF attorney said, is exactly the problem: How is a secular court qualified to determine which church activities are protected by the First Amendment and which are not? And are we to give a civil rights commission the authority to force churches to violate their religious beliefs and practices because the commission doesn’t think some of the church’s activities are “religious enough”?

“You don’t sift through the activities and weigh whether one is religious and one is not,” O’Ban said to U.S. District Judge Stephanie Rose. Besides, he continued, “[His client's] church does not allow any use of its building inconsistent with its religious purpose.”

Weber, however, wasn’t willing to concede O’Ban’s argument.

“Church autonomy is not without limits,” she said, suggesting some church activities may require a test of whether or not they are “rooted in sincere religious belief.”

But as for what that test may be, or who would have the ability to make that determination, Weber could only say it would have to be determined on a “case-by-case” basis. Des Moines City Attorney Michelle Mackel admitted there was “no test except common sense measuring.”

Yet as the very controversy over open bathrooms in schools – and now churches – reveals, what qualifies as common sense isn’t commonly agreed upon in America today.

“That is precisely the problem,” rebutted O’Ban.

“That vagueness [in the law] is in itself a constitutional violation,” O’Ban said.

O’Ban argued his client is left wondering whether a potluck has a “bona fide religious purpose” and thus is protected by the First Amendment or not. What about a movie night where the public is invited? Will a court have to sift through the movie to determine whether its content is Christian enough to be deemed “bona fide religious”? What about offering community child care or feeding the homeless? Could a church be found guilty of “discrimination” if a transgender, homeless man came in for a meal and found a pamphlet on human sexuality that made him feel, according to Iowa Code, “not acceptable”?

Yes, there’s a religious institution exemption in the Iowa Civil Rights Code, O’Ban conceded, but its “impossibly vague” language opens the door for government enforcers to start “sifting through church activities to determine what are religious or non-religious activities,” a measure of government intrusion on the freedom of religion he called “deeply concerning.”

“That vagueness [in the law] is in itself a constitutional violation,” O’Ban said. “That vagueness has had and continues to have a ‘chilling’ effect on [the church's] First Amendment rights.”

Fort Des Moines Church of Christ and Alliance Defending Freedom are asking Judge Rose to issue an injunction to prevent the city and state from dictating bathroom policies within the walls of the church and from regulating the church’s public communications, to legally free churches to once again exercise the freedom of speech and religion without having to stop and evaluate whether every activity is “religious enough” to be exempt from government enforcement.

Judge Rose offered no timeline for her decision but suggested it would be forthcoming as swiftly as possible.