William Petroski

bpetrosk@dmreg.com

Two conservative Iowa churches contend the Iowa Civil Rights Commission is violating their rights to free speech and religious liberty by censoring their views on human sexuality and forcing them to open restrooms to members of the opposite sex.

The Fort Des Moines Church of Christ filed a federal lawsuit Monday in U.S. District Court in Des Moines claiming the commission's interpretation of state civil rights law prohibits church members from making any public comments — including from the pulpit — that could be viewed as unwelcome to people who do not identify with their biological sex.

The federal lawsuit also names the city of Des Moines as a defendant because it has enacted a city ordinance that is nearly identical to a state law prohibiting discrimination by public accommodations.

The Des Moines church's concerns were echoed Tuesday by leaders of Cornerstone World Outreach, a nondenominational, Bible-based church in Sioux City. They said they are asking the commission to declare that Iowans have a right to speak from church pulpits about biblical teachings on sexuality. The Sioux City church also wants a declaration that Iowa churches are free to follow their religious doctrines in how they accommodate people in restrooms, locker rooms and living facilities.

The churches' challenges to the commission come amid increasing national attention and debate over transgender rights.

The Iowa Legislature in 2007 prohibited discrimination in public accommodations on the basis of sexual orientation or gender identity. Kristin Johnson, director of the Iowa Civil Rights Commission, responded to the two churches' contentions by saying that state officials have consistently enforced the law. She noted that state code provides some exemptions for bona fide religious institutions engaged in activities with a bona fide religious purpose.

However, the churches and the commission are interpreting those bona fides in wildly different ways.

Cornerstone World Outreach Church accuses the commission's interpretation of interfering with the church's doctrine, what it can teach and how it can operate.

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Paul Gowder, a law professor at the University of Iowa Law School and an expert in constitutional law, said it would be "blatantly unconstitutional" for state officials to try to regulate the content of church sermons.

"The notion that the Civil Rights Commission can prohibit a church from sermonizing in whatever hateful or discriminatory way they want is absurd on its face," he said.

However, Gowder said access to church bathrooms by transgender persons is a more complicated matter without an easy answer. The state and federal governments cannot regulate religious exercise directly, but religious institutions are not exempt under the federal Constitution from general laws that apply to everyone, he said.

"So I guess the honest answer to the bathroom question would be I am not sure," he said.

Drake University law professor Maura Strassberg, an expert on sexuality law, sees the matter as more clear-cut. She said a past ruling on public facilities by the U.S. Supreme Court found that decisions on allowing someone to use a restroom are not considered free speech and would not be protected by the First Amendment. So churches can't ban certain types of people from a restroom as long as the facilities are open to the public, she said, noting the Fort Des Moines church has specifically said it welcomes people who do not identify with their biological sex.

Strassberg said sermons that stick to human sexuality matters pertaining to theology would be constitutionally protected. But she suggested situations could arise where a preacher's remarks could cross over the line into harassment.

"There is a line: You can go from, 'This is what God believes' … to 'You are bad, so we don't want you here,'" Strassberg said.

Advocates square off

Donna Red Wing, executive director of One Iowa, the state's largest organization advocating for LGBTQ rights, criticized the Fort Des Moines Church of Christ lawsuit:

“Do we understand what is happening? They are suing the Iowa Civil Rights Commission for doing its job," she said. "These protections have been with us since the 2007 amendment to the Iowa Civil Rights Act added gender identity and sexual orientation as protected classes. …

"As a church, they can believe whatever they want. In their bona fide religious activities, they are exempt. They cannot, however, break the law when providing public accommodations."

However, Drew Zahn, a spokesman for The Family Leader, an Iowa-based Christian conservative group, said labeling churches "public accommodations" under the Iowa civil rights code is disastrous for First Amendment rights. He agreed with the churches' contention that the commission's interpretation could not only force churches to open restrooms and showers to members of the opposite sex, but also could ban statements that make people of "particular … gender identity" feel unwelcome or not accepted.

"Banning what preachers can say? That kind of government intrusion into church doctrine is exactly what the Bill of Rights was written to prevent," Zahn said.

Ben Hammes, a spokesman for Iowa Gov. Terry Branstad, who appoints members of the Iowa Civil Rights Commission, said the commission has taken no action to change state law. He also said the governor believes every Iowan should be treated with respect and dignity.

"The governor has confidence in the commission to enforce the laws we currently have that protect religious institutions' right to exercise a religious exemption while protecting personal rights," Hammes said.

At a news conference in May, Branstad criticized President Barack Obama, claiming the White House has engaged in "overreach" by threatening to withhold federal money from schools if they don't allow transgender students to use restrooms and locker rooms consistent with their gender identity. Branstad also said the Obama administration's focus on transgender rights is an example of why many Americans are upset with the country's direction.

Outside groups involved

The Fort Des Moines Church of Christ is represented by Alliance Defending Freedom, a conservative nonprofit group based in Scottsdale, Ariz. The plaintiffs said the lawsuit is known in legal circles as a "pre-enforcement challenge," a lawsuit that allows citizens to challenge a law — in this case a law that they believe threatens First Amendment freedoms — before the government enforces it against them. Organizations such as the American Civil Liberties Union and Planned Parenthood have filed such lawsuits against laws they oppose, the plaintiffs said.

"Americans, including church leaders, have the right to challenge unjust laws. We don’t have to be punished or thrown in jail before we seek justice,” said Steven O’Ban, a senior lawyer for the Alliance Defending Freedom.

Timm Reid, a Des Moines lawyer, is the local counsel for the plaintiffs.

Cornerstone World Outreach is represented by First Liberty Institute of Plano, Texas, which says it is the largest legal organization in the nation dedicated exclusively to protecting religious freedom for Americans. Jeremy Dys, senior counsel for First Liberty Institute, said he views the commission's interpretation of state law as a "gross violation" of the sanctity of the church.

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The Fort Des Moines Church of Christ lawsuit said the Iowa Civil Rights Commission has published its position in a publication titled “A Public Accommodations Provider’s Guide to Iowa Law.” In a question-and-answer section, the document asks, “Does this Law [the Iowa Civil Rights Act] Apply to Churches?” The guide answers by saying, “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).”

A disclaimer in the publication says the "guidance document is designed for general educational purposes only and is not intended, nor should it be construed or relied upon, as legal advice."

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The Fort Des Moines Church of Christ created controversy in 2012 when it had an illuminated sign displayed outside the church with the message, “Gay is not okay." The explanation at the time was that the sign was meant to advertise that the week’s sermon was about homosexuality. About 100 protesters gathered outside the church in response, carrying rainbow flags and other banners.

Pastor Mike Demastus told the Register that he was targeting homosexuality, but not homosexuals specifically. He subsequently replaced the word "gay’" with "adultery" after the sign was vandalized.

Last year, Demastus organized a group of Christians who prayed at the Iowa Capitol when the Iowa House began its day with a modern pagan blessing by a Wiccan priestess from Cedar Rapids. Demastus said he didn't dispute the woman's constitutional right to pray as she wishes, but he would rather have legislators hearing lessons from the God of the Bible.

Senior Pastor Cary Gordon of Cornerstone World Outreach church in Sioux City is also president of the PeaceMakers Institute, which is described as a theological school “dedicated to equipping conservative thinkers with the tools necessary to achieve victory in the American culture war.”

Gordon is an opponent of same-sex marriage and helped lead a successful 2010 effort to remove three Iowa Supreme Court justices who voted to legalize gay marriage. In the campaign leading to the 2012 Iowa Republican presidential caucuses, Gordon had a key role in supporting former U.S. Sen. Rick Santorum.