Update: On 7/8/16 the Iowa Human Rights Commission agreed to amend its brochure. However, the lawsuit remains filed. 

On July 4, 2016, an Iowa church filed a “pre-emptive” federal lawsuit with the intention of preventing the state of Iowa and the city of Des Moines from forcing the church to provide restroom and other facilities to transgender individuals or to censor sermons and other communications on the subject in violation of the church’s constitutional rights. The lawsuit is largely based on a hypothetical threat that is not contemplated in the law. Iowa exempts religious institutions from Iowa’s Civil Rights Act, the state has made no attempt to take any actions against churches, and enforcement against churches would violate the law. To put it succinctly, the church is suing for protection against a threat that does not exist under current law.

The Fort Des Moines Church of Christ a non-denominational congregation, filed the lawsuit in response to a parenthetical in a brochure distributed by the Iowa Civil Rights Commission entitled, “Sexual Orientation & Gender Identity: A Public Accommodations Provider’s Guide to Iowa Law.”

On the last page of the document, presented in a question and answer format, the question is asked, “Does this law apply to churches? ” The answer 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 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).”  (Underlined emphasis in original.)

The parenthetical in the brochure does not exist in the Iowa Civil Rights Act, as updated in 2007, which specifically states that it does not apply to “any bona fide religious institution with respect to any qualifications the institution may impose based on religion, sexual orientation, or gender identity when such qualifications are related to a bona fide religious purpose.”

According to the lawsuit, filed on behalf of the church by Alliance Defending Freedom, the Fort Des Moines Church of Christ does not distinguish between activities that have a “bona fide religious purpose” and its other activities. The congregation believes that “to be a faithful follower of Jesus Christ it must invite members of the community to hear the good news of God’s love and forgiveness offered freely to everyone, it should teach those beliefs to the world, and it should extend kindness and compassion to all who pass through its church doors, just as Jesus Christ extended forgiveness, kindness, and compassion to its members.”

The church claims that it might be in violation of the statute, as interpreted in the pamphlet, if the minister preaches sermons addressing the church’s beliefs about gender identity, or if the church puts up signage or bulletin notices regarding its restroom policy. According to the suit, the church adopted a restroom gender policy to present a consistent message and to “avoid any embarrassing or awkward situations for those who do not identify with their biological sex and for its own church members.”

Because the Commission has not made any attempt to force the church to accommodate transgender individuals, the lawsuit is filed as a  “pre-enforcement challenge,” a method used by various advocacy organizations to address First Amendment issues in statutes before the government enforces them. In this case, however, a pre-enforcement challenge is not appropriate because there is no statute that would affect churches – the existing statute already exempts churches.

The issue, like many others involving religious liberty issues, has been remarkably misreported in the press. For instance, the Des Moines Register, without acknowledging the existence of the religious exemption, interviewed two law professors, who reportedly said that a hypothetical accommodation law that did not exempt churches would apply to churches because, according to the professors, the churches are not exempt from general laws that apply to everyone and church facilities that are open to the public must accommodate people based on gender identity.

That the law professors interviewed by the Register would think that religious exemptions are not legitimate is not a comforting thought, but fortunately, the Supreme Court has historically recognized the exemption of religious institutions from anti-discrimination provisions. In 1987, the U.S. Supreme Court upheld the constitutionality of part of Title VII of the Civil Rights Act, which exempts churches and religious organizations from anti-discrimination provisions. See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987). See also Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).

The Commission’s executive director Kristin H. Johnson told ThinkProgress.org that the religious institution exemptions have been consistently applied since the Act was enacted in 2007, and that enforcement actions have not been taken or even considered against churches.

At a state level, most states recognize that religious organizations are exempt from public accommodations laws that violate their sincerely-held religious beliefs. Most likely, the Iowa case will be dismissed at the outset on summary judgment because it is based on a parenthetical in a non-authoritative brochure, because the state has not attempted to enforce any restroom access rules against any churches, and the scenario painted in the litigation is, at best, hypothetical.

The only potentially legitimate argument that the plaintiff could raise is that the language in the brochure is inaccurate and that the Commission should change it, something the Commission might be willing to do to clarify its intent and to avoid the cost and time of litigating the issue.  If the brochure changes to comply with the statute, the reason for the lawsuit would immediately disappear.

Rather than running the risk of weakening their cause by fighting what are clearly paper tigers, churches that intend to maintain their traditional religious beliefs and practices should work to ensure that states continue to recognize religious exemptions, and more importantly, maintain the mutually protective wall of separation of church and state.

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Illustration: DepositPhotos.com / mbangemann