Many of you have seen the headlines about the state of Iowa being sued by two churches because the Civil Rights Commission interpreted a state law to potentially apply to church services and child care centers. So what the heck is going on? Well, it turns out that the state has not enforced these provisions against churches or other houses of worship yet, but based on a publication by the state Civil Rights Commission it is understandable that some churches are concerned this might happen. The publication (with link included) is called, A Public Accommodations Provider’s Guide to Iowa Law. Like many such informational publications it has a Q&A section and in that section is the following:
“Does this Law [the Iowa Civil Rights Act] Apply to Churches?”
“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).”
The publication does not have the binding force of law, and there has been no enforcement against houses of worship yet, but the implications are disturbing. First, let me be clear that I am a big supporter of both LGBT rights and religious freedom and Iowa can be justifiably proud that it has such an excellent record on protecting the rights of the LGBT community. The Iowa Civil Rights Commission generally does an excellent job, but the suggestion that a church or other house of worship could be a public accommodation, even if a literal reading of the statute suggests this possibility, is misguided and if enforced could easily run afoul of the the United States Constitution and Article I, Section 3 (and possibly, albeit less likely, Article I section 4) of the Iowa Constitution. Moreover, it defies common sense and damages LGBT rights more broadly because of the backlash it stirs up. I am on record suggesting that the Hobby Lobby case, which held that for-profit entities can be protected under the federal Religious Freedom Restoration Act, while viewed by many as a step forward for religious freedom, is actually a step backwards because it creates such immense backlash against religious freedom generally. Well, this Iowa interpretation of it’s public accommodation law is creating a lot of backlash and drawing attention away from far more important issues involving discrimination against members of the LGBT community than whether a church has to avoid offensive statements or change it’s bathroom access policies.
Pretty much every legal scholar questioned by the media in the plethora of stories on this issue has correctly stated that any attempt by the state to regulate what is said in a church service or sermon is brazenly unconstitutional, and this is correct. The constitution gives rise to something called the Doctrine of Church Autonomy and a related doctrine called the Ecclesiastical Abstention Doctrine. The former requires that the government keep it’s nose out of the religious aspects of a religious entity’s existence and the latter doctrine requires that courts avoid deciding questions about ecclesiastical matters, such as what is a correct religious interpretation. The latter doctrine does acknowledge that courts can apply “neutral principles of law,” and perhaps the public accommodation law in Iowa would provide a neutral principle (although that is a complex and open question), but this would not preclude application of the doctrine of church autonomy. Iowa could not interfere with the content of a church service even if that service were “open to the public,” as most church services are. Moreover, having the state get involved in determining what constitutes “a bona fide religious purpose” itself could violate the Constitution.
The two other concerns I have heard raised are whether church run schools could be regulated and whether churches could be required to provide access to their bathrooms based on gender identity. As for the first question the United States Supreme Court has recognized in several contexts that church schools are generally an important arm of the mission of the church, and even if you and I find some doctrines of some churches to be offensive on issues relating to LGBT status, it is not my place or that of a state government to tell a church what its doctrines and teachings ought to be. The bathroom question is harder because sometimes churches are used as polling places or rented out for non-church related business and it is quite likely that in these contexts the commission would be justified in enforcing Iowa law requiring bathroom access consistent with gender identity in public accommodations, but to the extent the bathrooms are in use by the church itself or a church school the doctrine of church autonomy would seem to preclude the government from requiring a church to violate it’s religious tenets regarding bathroom access.
Finally, if I were the state of Iowa I would quickly settle these cases by acknowledging the above. The reason for this is that having these cases live and covered by the media will increase backlash against LGBT rights and the state is likely to lose on these issues anyway. Even if the state were not likely to lose, the practical damage caused to LGBT rights is significant if people think that churches could be required to alter what they say and do. This is like the Hobby Lobby case. It has wreaked havoc on attempts to promote religious freedom for traditional religious entities, because people are justifiably concerned that for-profit entities might be protected by religious freedom laws–even where those laws do not require this–and that third parties might be harmed or discriminated against. Iowa’s interpretation of it’s public accommodation law might be viewed as a step forward for LGBT rights, but I fear that it may create so much backlash that it will end up being a step backwards. Sometimes pragmatic compromise promotes stronger rights on both sides. I hope Iowa takes that path in these cases.