Iowa Law Threatens Churches, Through Definition as “Public Accommodation” And Speech Restrictions

An Iowa church has challenged the Iowa Civil Rights Commission (ICRC) over its interpretation, as published in “A Public Accommodations Provider’s Guide to Iowa Law,” that churches may be included as a “public accommodation” subject to the Iowa Civil Rights Act (Act).   Under this unprecedented encroachment on religious liberty, free speech, and other constitutional rights, Iowa churches and other religious organizations are now subject to liability for preaching about their sincerely held Biblical beliefs about sexuality, restricting bathroom and locker room access, and other expressions of religious beliefs. 

The recently filed lawsuit, brought by the Alliance Defending Freedom on behalf of the Fort Des Moines Church of Christ, seeks to strike down the law as unconstitutional in multiple respects.   In quick response, the ICRC has updated its brochure with some helpful clarifications, but the underlying legal issues are still of great concern.

Background – Churches Left Alone, But Not in Iowa

As religious institutions owning private property, churches have long been able to preach, teach, and determine their facility usage in accordance with their sincerely held religious beliefs without government intervention.  In the wake of increasing anti-discrimination protections for sexual orientation and gender identity (SOGI) and the U.S. Supreme Court’s Obergefell same-sex marriage decision last year, however, a key legal question under state and local law has emerged:  whether a church could be considered a “public accommodation” and therefore subject to such laws’ restrictions. 

Illinois Department of Revenue Revisits “Religious” Qualification for State Tax Exemption

What is sufficiently “religious” for state tax exemption?  The lawyers of Wagenmaker & Oberly and the Thomas More Society, a Chicago public interest law firm, collaborated together to reach a groundbreaking administrative appeal victory on this question, in Department of Revenue v. Great Lakes Catholic Fellowship, Inc. (Case No. 15-ST-019).  The decision rejects the Department of Revenue’s position that the religious exemption under Illinois law is limited to houses of worship.   Instead, the Administrative Law Judge ruled that this constrained interpretation improperly scrutinizes bona fide religious activities and that the term “religious” also extends to organizations with a broader religious nature. 

This administrative ruling is consistent with Illinois court rulings and therefore should pave the way for improved recognition of both property and sales tax exemptions based on religious qualifications with the Department of Revenue.  Here’s why.

State Exemption, Not IRS

Under Illinois law and many other state laws, nonprofits may obtain exemption from both local property taxes and retail sales taxes.  Such exemptions often provide valuable economic benefits.  For these exemptions in Illinois, nonprofits generally must be Section 501(c)(3) tax-exempt organizations and additionally show that they fit into one of the following categories:  religious, educational, or charitable.  These categories are terms of art:

*    “religious” has historically been interpreted narrowly by the Department of Revenue as confined only to houses of worship (i.e., churches and other religious institutions), and not more broadly per Illinois court precedent;

*    “educational” generally means institutions of learning that relieve government burdens (i.e., grammar schools, but not trade schools); and

*    “charitable,” which is the catchall category for organizations that widely distribute charitable benefits without “undue obstacle and without any “view to profit” (to the extent any fees are charged).

Handling Suspected Child Abuse

How do nonprofits respond when the unthinkable happens: a child comes to her school (or her church, after-school program, or daycare) with a bruise on her arm and other questionable indicators behavior of concern?  Or when a program participant shares that a staff worker has touched him inappropriately?  The potential harm may be personally devastating, and the adverse organizational implications may be enormous, as exemplified in recent years by Catholic churches, Penn State University, and many other organizations.                  

Regardless of the scope and gravity of suspected abuse, nonprofit organizations that provide care and other services to children, the elderly, and mentally disabled adults (collectively “vulnerable persons”) need to be well equipped to handle potential abuse situations.  To protect and support all those involved with vulnerable persons, responsible nonprofits should develop written abuse prevention policies.  Nonprofit leaders need to include specific protocols for addressing suspected child abuse - within their prescribed policies and in actual practice - including the following key measures.    

Prepare for Potential Problems.

1.  Develop an abuse prevention policy that provides for sufficient supervision and training regarding care for vulnerable persons, and follow it!

2.  Understand legal reporting obligations for the nonprofit worker who has observed any suspected abuse, and include a summary in the abuse prevention policy.  Each state varies: in some states, only certain people are “mandated reporters” for child abuse (e.g., teachers, social workers, public safety officials); some states make everyone a “mandated reporter”; certain privileges may apply for clergy members; and other special reporting obligations may apply for adult abuse.  Specific reporting information should be contained in the nonprofit organization’s written abuse prevention policy, with telephone or website hotline information readily available.

3.  Understand internal reporting obligations, again as reflected in the organization’s written abuse prevention policy.  A volunteer definitely should report the problem to a supervisor, in addition to any independent reporting obligations as a “mandated reporter.” 

4.  Make sure that your organization has appropriate insurance to cover potential harm caused by a staff worker or volunteer, including legal defense costs in the event the organization is named as a defendant.