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.
To date, no church has been deemed a “public accommodation” by any court in the United States. But that approach conflicts with the Iowa Commission’s legal interpretation of the Iowa Act, which includes SOGI as protected classes, that was left unchanged until the ADF’s recently filed complaint. The Act’s expansive anti-discrimination terms prohibit any “demonstration of hostility,” “remarks of a demeaning nature,” and “intentional use of pronouns inconsistent with a person’s presented gender,” as well as refusal to allow bathroom and locker room access as a person may wish.
According to the original ICRC brochure’s Q & A, such SOGI prohibitions “sometimes” apply to churches. Under the ICRC’s interpretation, “churches are still subject to the [Act’s] provisions,” with “a child care facility operated at a church or a church service open to the public” provided as examples of the Act’s public accommodations applicability. The new version of the ICRC brochure omits this Q & A, and states instead that “places of worship” (including churches, synagogues, and mosques) are only “generally exempt” from the Act, with coverage if the “place of worship engages in “non-religious activities which are open to the public.” The two examples given are for an “independent day care” or a “polling place” located on the premises.
While seemingly better than the old version, the new brochure still raises many problems – particularly since most religious organizations would characterize all their activities as “religious” and since the ICRC did not categorically exclude them from coverage. For example, a church could still be held liable under the Act for posting Scripture verses about one-man/one-woman marriage, since some could deem that “hostile” or “demeaning” to those with same-sex sexual orientation. A church’s day care center could likewise get in trouble for teaching about Adam and Eve (as distinctly male and female), the wedding at Cana (where Jesus performed his first reported miracle for a male/female couple), and God’s creation of people as distinctly male and female (therefore warranting bathroom use according to each child’s biological gender). All such communications would violate the Iowa law, if the church is categorized as a “public accommodation.”
Public Accommodations Law Elsewhere, in Contrast to Iowa Law
Under federal law, namely Title II of the Civil Rights Act of 1964, establishments that are open to the public may not deny access based on race, color, religion, or national origin. Types of covered establishments include hotels, restaurants, lunch counters, retail facilities, and movie theaters. Notably, the list of protected classes does not include sex. Further, Title II has also never been applied to churches.
Many state and local civil rights laws contain a similar public accommodations counterpart, but are expanded to protect sex, sexual orientation, and gender identity. The state and local laws typically have specific religious exemptions. For example, the Illinois Civil Rights Act defines the term “public accommodations” expansively, consistent with the federal law’s list of covered establishments. The Illinois Act does not include any religious organizations and identifies only “non-sectarian” (i.e., non-religious) schools, day care centers, and adoption agencies as covered entities. The Illinois Act further expressly protects all public accommodations’ First Amendment constitutional rights, such as the “exercise of free speech, free expression, free exercise of religious or expression of religiously based views by any individual or group of individuals,” as falling outside the law’s prohibitions. (See 775 ILCS 5/5-101, 5/5-102.1(b).)
Not so in Iowa – even with the updated brochure, the Civil Rights Commission has indicated that churches may be covered as public accommodations. The Iowa Act (along with the nearly identical Des Moines ordinance) provides incredibly broad SOGI “public accommodations” protections, making illegal the following activities:
“[To] refuse or deny any person . . . the accommodations, advantages, facilities, goods, services, or privileges thereof or otherwise discriminate, separate, segregate or make a distinction against any person because of [SOGI and other protected classes] in the furnishing of such accommodations, advantages, facilities, goods, services or privileges; and
“[To] directly or indirectly print or circulate . . . any advertisement, statement, publication or use any form of application for entrance and membership which expresses, directly or indirectly, any limitation, specification or discrimination as to [SOGI and other protected classes], or indicate or publicize that the patronage of persons of any particular [protected class] is unwelcome, objectionable, not acceptable, or not solicited.
The only religious exception provided in the Act is extremely narrow: for a “bona fide religious institution with respect to any qualifications it may impose based on religious, sexual orientation, or gender identity,” and only when the “qualifications are related to a bona fide religious purpose. This exception further specifically excludes any property used for “commercial purposes.” The state retains the authority to determine these key terms in the law’s exception. Religious organizations are thus left to guess what the government will recognize as a "bona fide religious purpose" or "commercial purpose."
The Legal Challenge: Iowa Law Draws Line in Sand, and Church Responds
The Act’s sweeping anti-discrimination language, along with the ICRC’s inclusion of churches as “sometimes” or occasional “non-religious” public accommodations, pits all religious institutions’ constitutional rights squarely against the Act’s legal prohibitions. Religious organizations that sincerely believe in traditional marriage, biological gender identity, and marriage-only sexual freedom thus must decide - comply and be quiet, or speak out consistent with their beliefs and risk facing legal sanctions.
The newly filed lawsuit seeks to protect all religious institutions’ constitutional rights against such overreaching, as asserted by the church plaintiff. The well-written complaint contains extensive descriptions of the church’s sincerely held religious beliefs and practices, its consecrated physical facilities, and how it is generally open to the public, as an expression of Jesus Christ’s compassionate invitation to hear the good news of God’s love and forgiveness. The complaint further describes how vitally important it is to both communicate the church’s understanding of God’s truth and to refrain from communicating messages that violate such religious understandings, including sincerely held beliefs about Biblical sexuality, while welcoming and ministering to all.
The complaint then asserts that the Iowa law and accompanying City ordinance are unconstitutional, essentially because the laws require the church to speak, refrain to speak, and act in ways that violate the church’s deeply and sincerely held religious beliefs about Biblical sexuality. These allegations remain true even under the updated brochure, since the ICRC continues to assert that religious institutions may constitute public accommodations under the Act.
Both on their face and as applied, these laws operate as an abridgement of the Church’s First Amendment free speech rights, imposing content-based speech restrictions that are overbroad, over-inclusive, and compulsive. In addition, the overly broad laws interfere with the church’s First Amendment religious rights, with respect to its own internal affairs in church government, faith, doctrine, and operations. The laws further violate the church’s First Amendment rights of expressive association and right of assembly – to gather with others for communal prayer, worship, fellowship, discussion, mutual encouragement, and other religious purposes – with no compelling government interest served by infringing on such rights. Constitutional due process rights are also clearly violated by virtue of the laws’ broad language prohibiting speech that is “unwelcome, objectionable, [or] not acceptable” and failure to define the vague terms “qualifications that are related to the bona fide religious purpose.” It is anyone’s guess as to what speech would fall into this subjective abyss.
Each of these constitutional violations raise deep concerns not only for religious institutions but for our society as a whole – about chilled speech and mandatory self-censorship, freedom of expression and association, long-respected core religious liberty values, and basic due process requirements that laws be clearly understandable and capable of following. What’s next for churches and other concerned organizations? Again, it is a positive sign that the ICRC so quickly updated their brochure. The next step should be to update the Act with a categorical exclusion for religious institutions from being defined as “public accommodations,” especially in light of the Act’s sweeping speech restraints and too-narrow “bona fide religious” exception.