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.
