UNITED STATES DISTRICT COURT FOR THE SOUTHERN...

1

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA

SOUTHERN DIVISION

Fort Des Moines Church of Christ, a nonprofit religious corporation,

Plaintiff,

v.

Angela Jackson, Patricia Lipski, Mathew Hosford, Tom Conley, Douglas Oelschlaeger, Lily Lijun Hou, and Lawrence Cunningham, each in his or her official capacity as Commissioners of the Iowa Civil Rights Commission; Kristen H. Johnson, in her official capacity as the Executive Director of the Iowa Civil Rights Commission; Tom Miller, in his capacity as the Attorney General of the state of Iowa; and the City of Des Moines, Iowa,

Defendants.

) ) ) ) ) Case No. 4:16-cv-00403-SMR-CFB ) ) ) PLAINTIFF’S MOTION FOR ) PRELIMINARY INJUCTION ) ) Oral Argument Requested ) ) ) ) ) ) )

MOTION

Plaintiff Fort Des Moines Church of Christ by and through its counsel, brings this Motion

for a Preliminary Injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure, based

on Plaintiffs Memorandum in Support of Its Motion for a Preliminary Injunction, the Declaration

of Michael Demastus, and exhibits thereto, filed herewith, and the Verified Complaint previously

filed with the Court.

Plaintiff seeks a preliminary injunction prohibiting the Defendants from enforcing or

applying Iowa Code § 216.7 (1) (a) and (b) of the Iowa Civil Rights Act, and Des Moines City

Code, § 62-136(1) and (2). Plaintiff respectfully requests oral argument on this motion. A

proposed order is provided.

Case 4:16-cv-00403-SMR-CFB Document 9 Filed 07/13/16 of 3

2

Respectfully submitted this 13th day of July, 2016.

COUNSEL:

/s/ Steven O’Ban Steven O’Ban* Erik Stanley* Jeremy Tedesco* ALLIANCE DEFENDING FREEDOM 15100 N 90th St Scottsdale, AZ 85260 Tel.: 480-444-0020 Fax: 480-444-0028 [email protected] Christiana Holcomb* ALLIANCE DEFENDING FREEDOM 440 First Street NW, Suite 600 Washington, DC 20001 Tel.: 202-393-8690 Fax: 202-347-3622 [email protected]

Not licensed in DC Practice limited to federal court

Timm Reid

300 Walnut St Suite 5 Des Moines, IA 50309 Tel.: 800-217-9312 [email protected]

Attorneys for Plaintiff

*Admitted pro hac vice


3

CERTIFICATE OF SERVICE

I hereby certify that on, I electronically filed the foregoing paper with the Clerk of Court

by using the CM/ECF system.

All participants in the case are registered CM/ECF users and will be served by the

CM/ECF system.

Date: July 13, 2016

/s/ Steven O’Ban

Steven O’Ban



SOUTHERN DIVISION Fort Des Moines Church of Christ, a nonprofit religious corporation,

Plaintiff,

v.


Defendants.

) ) ) ) ) Case No. 4:16-cv-00403-SMR-CFB ) ) ) PLAINTIFF’S MEMORANDUM IN ) SUPPORT OF ITS MOTION FOR ) A PRELIMINARY INJUNCTION ) ) ) Oral Argument Requested ) ) ) ) ) ) )

PLAINTIFF’S MEMORANDUM IN SUPPORT OF ITS

MOTION FOR A PRELIMINARY INJUNCTION

Case 4:16-cv-00403-SMR-CFB Document 9-1 Filed 07/13/16 Page 1 of 27

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii

INTRODUCTION .......................................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 3

ARGUMENT .................................................................................................................................. 6

I. The Church Will Likely Succeed in Showing that the Act and City Code Violate the First and Fourteenth Amendments. ............................................................................... 7

A. The facility-use mandate violates the Church’s constitutional right to determine its religious beliefs about human sexuality, teach those beliefs to its members and to the public, and control its facility in a manner that is consistent with its religious beliefs without government interference. ................... 7

B. The speech ban violates the Church’s right to communicate its doctrine and control its facility use. .................................................................................... 12

1. The speech ban regulates constitutionally-protected religious speech. ........................................................................................ 12

2. The speech ban is content and viewpoint based. ...................................... 13

3. The speech ban fails strict scrutiny. .......................................................... 13

C. The religious institution exemption and speech ban are unconstitutionally vague in violation of the Fourteenth Amendment. ............................................... 15

D. The speech ban is unconstitutionally overbroad in violation of the First Amendment. .......................................................................................................... 18

II. The Church is Suffering Irreparable Harm. ...................................................................... 19

III. The Balance of Hardships Favors the Church. ................................................................. 20

IV. Public Policy Favors a Preliminary Injunction For the Church. ....................................... 20

CONCLUSION ............................................................................................................................. 20


iii

TABLE OF AUTHORITIES

Cases: American Civil Liberties Union v. Ashcroft, 322 F.3d 240 (3d Cir. 2003)...............................................................................................20 Armstrong v. District of Columbia Public Library, 154 F.Supp.2d 67 (D.D.C. 2001) .......................................................................................19 Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) ...........................................................................................................18 Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648 (10th Cir. 2002) .............................................................................................8 Capitol Square Review & Advisory Board v. Pinette,

515 U.S. 753 (1995) ...........................................................................................................12 Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District No. 1, 690 F.3d 996 (8th Cir. 2012) ...............................................................................................7 City of Chicago v. Morales, 527 U.S. 41 (1999) .............................................................................................................15 Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987) .....................................................................................................10, 11 Elrod v. Burns, 427 U.S. 347 (1976) ...........................................................................................................19 Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998) .............................................................................................15 Grayned v. City of Rockford, 408 U.S. 104 (1972) ...........................................................................................................15 Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S.Ct. 694 (2012) ............................................................................................8, 9, 11, 12


iv

Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94 (1952) .....................................................................................................8, 9, 10 Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) ...........................................................................................................18 Menorah Chapels at Millburn v. Needle, 899 A.2d 316 (N.J. 2006).................................................................................................8, 9 Minnesota Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864 (8th Cir. 2012) .......................................................................................19, 20 Phelps-Roper v. City of Manchester, Missouri, 697 F.3d 678 (8th Cir. 2012) .............................................................................................18 Powell v. Noble, 798 F.3d 690 (8th Cir. 2015) .............................................................................................19 Rayburn v. General Conference of Seventh-Day Adventist, 772 F.2d 1164 (4th Cir. 1985) .............................................................................................8 Reed v. Town of Gilbert, Arizona, 135 S.Ct. 2218 (2015) ..................................................................................................13, 14 Rent-A-Center, Inc. v. Iowa Civil Rights Commission, 843 N.W.2d 7272 (Iowa 2014) ............................................................................................5 Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819 (1995) ...........................................................................................................13 Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001)...............................................................................................19 Texas v. Johnson, 491 U.S. 397 (1989) ...........................................................................................................14 United States v. Williams, 553 U.S. 285 (2008) .....................................................................................................16, 17


v

Video Software Dealers Association v. Webster, 968 F.2d 684 (8th Cir. 1992) .............................................................................................15 Woodis v. Westark Community College, 160 F.3d 435 (8th Cir. 1998) .............................................................................................15 Statutes: Iowa Code § 216.1 .......................................................................................................................1, 5 Iowa Code § 216.2 .............................................................................................................4, 5, 7, 10 Iowa Code § 216.5 ...........................................................................................................................5 Iowa Code § 216.7 .........................................................................................1, 2, 4, 5, 7, 13, 16, 17 Des Moines City Code § 62-1 ......................................................................................................4, 5 Des Moines City Code § 62-8 ..........................................................................................................5 Des Moines City Code § 62-42 ........................................................................................................5 Des Moines City Code § 62-136 ..................................................................................................2, 4 Des Moines City Code § 62-137 ......................................................................................................5 Other Authorities: Sexual Orientation & Gender Identity: A Public Accommodations Provider’s Guide to Iowa Law ....................................................................................................................................1, 2, 5, 16


Plaintiff’s Memo in Support of its Motion for Preliminary Injunction -1

INTRODUCTION

This case is about the freedom of Iowa churches to teach their religious beliefs, both to

their congregants and the outside world, and to use their houses of worship consistently with those

beliefs. For millennia, a central tenet of the Christian faith has been that God created two distinct,

immutable, and complementary sexes—male and female—to reflect God’s image and nature.

From its founding, Plaintiff Fort Des Moines Church of Christ (“Church”) not only taught this

religious belief, but also ordered its facility to reflect and convey that belief. The Church could

freely do so, until the Iowa Civil Rights Commission (“Commission”) threatened those freedoms.

The Church discovered that the Commission—the entity responsible for interpreting and

enforcing the Iowa Civil Rights Act, Iowa Code § 216.1, et. seq (“Act”)—interprets that Act to

ban churches from communicating their religious beliefs about the two distinct biological sexes

and to require churches to open their showers and restrooms to members of the opposite sex. While

the Act exempts “[a]ny 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,” the Commission interprets this

exemption narrowly: to not cover churches when they open to the public. Iowa Code § 216.7(2)(a).

This interpretation appears in the publication entitled “Sexual Orientation & Gender Identity: A

Public Accommodations Provider’s Guide to Iowa Law.”1 The publication begins in question and

answer format and focuses on the right of individuals to access restrooms and showers “in

accordance with their gender identity.” The publication singles out one type of facility and asks:

“Does this Law Apply to Churches?” It answers the question as follows:

Sometimes. Iowa law provides that these protections do not apply to religious institutions with respect to any religion-based qualifications when such

1 This guide appears on the Commission’s website at https://icrc.iowa.gov/sites/default/files/publications/2012/SOGIPublicAccom.pdf, last visited July 11, 2016.



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). (emphasis supplied.) The Commission’s interpretation of the Act requires churches to violate their religious

beliefs in at least two ways: (1) they must refrain from communicating their religious beliefs about

biological sex or in any way indicating that persons should use the sex-specific facility that accords

with their biological sex, and (2) they must open church sex-specific, private areas like showers

and restrooms to persons of the opposite biological sex. Iowa Code § 216.7(1)(a)-(b). The City of

Des Moines enacted a nearly identical provision to Iowa Code § 216.7, likewise imposing these

requirements on public accommodations. See Des Moines City Code Sec. 62-136 (“City Code”).

After this lawsuit was filed, the Commission revised its guidance document. The

Commission continued to single out places of worship for special instruction and to sanction

churches that communicate their beliefs about biological sex, and operate their facilities consistent

with those beliefs, when they engage in “non-religious activities.”2 The Commission does not

define the newly-minted and vague term “non-religious activities,” reserving to itself the unbridled

discretion to determine for a church which of its activities are religious and which are not.

For the first time in our nation’s history, state officials are reaching into the internal affairs

of churches to silence them from teaching and publicly promoting a central tenet of their faith and

forcing them to operate their own facilities in a way that contradicts their faith. This unprecedented

overreach eviscerates the First Amendment and the foundational freedoms it embodies: the

freedom of church autonomy, freedom to worship, freedom of speech, freedom of expressive

association, and freedom to peaceably assemble without government interference. The Act’s

coercive demands directly and continually harm the Church’s ability to teach its doctrines, to

2 https://icrc.iowa.gov/sites/default/files/publications/2016/2016.sogi .pa1 .pdf, last viewed July 11, 2016.



govern itself, and to follow its faith. The Church therefore needs a preliminary injunction to stop

this ongoing irreparable harm and to bar the government from areas where it doesn’t belong—the

church’s showers and restrooms, its sanctuary, and its pulpit.

STATEMENT OF FACTS3 The Church’s Religious Beliefs and Facility Policy

The Church’s motto, “Love God … Love People … Serve Everyone,” encapsulates its

mission to share with everyone the good news of forgiving grace in Jesus Christ. In furtherance of

that mission, the Church holds weekly worship services, Bible studies, youth activities, and other

religious events, and welcomes the public to attend its religious programming.

The Church holds to the historic Christian belief that God created two distinct, immutable,

and complementary sexes, and that each person is created either male or female. The Church

recognizes that some individuals are confused about their sexual identity, but believes that hope

and peace are found in embracing the goodness of God’s design in the distinct natures of maleness

and femaleness. The Church proclaims these religious beliefs both to those who attend their

services and to the public.

The Church also believes that its facility is a means by which it communicates and fulfills

its mission. The Church has consecrated its church building as a house of worship and can only

permit its facility to be used in furtherance of its religious principles: it cannot allow its facility to

be used in a way that contradicts or dilutes its Christian message.

Because the Church believes that sex is an immutable trait from which springs a natural

and healthy desire for physical privacy and modesty, it maintains two separate multi-occupancy

restrooms: one for biological women, and one for biological men. The Church believes that it

3 The following statement of facts is taken from Plaintiff’s Verified Complaint, which is incorporated herein by reference.



would violate God’s created order to permit these private spaces to be used by members of the

opposite biological sex. For the entirety of its existence, the Church has maintained an unwritten

policy—flowing logically from its biblically-informed beliefs—that these sensitive areas are to be

used by the designated biological sex only.

The Iowa Civil Rights Act, the Civil Rights Commission, and the City Code

Until recently, the Church did not consider that it was necessary to make public its restroom

and shower policy because the Church believed it was free to establish its own facility standards.

The Church learned that the Iowa Civil Rights Commission interprets the Iowa Civil Rights Act

to apply to churches. The Act makes it an unlawful discriminatory act for a public accommodation

to:

a) “refuse or deny any person because of … gender identity … the accommodations, advantages, facilities, services, or privileges thereof….” Iowa Code § 216.7(1)(a) (“facility-use mandate”).

b) “directly or indirectly advertise or in any other manner indicate or publicize that

patronage of persons of any particular … gender identity … is unwelcome, objectionable, not acceptable or not solicited.” Iowa Code § 216.7(1)(b) (“speech ban”).

The Church resides within the city limits of Des Moines, Iowa, and the City enacted a nearly

identical provision to Iowa Code § 216.7, likewise imposing these requirements on public

accommodations. See Des Moines City Code Sec. 62-136. Collectively, both the Act and City

Code provisions that ban public accommodations from restricting restroom and shower access

because of gender identity will be referred to as the “facility-use mandate,” and the Act and City

Code provisions that ban statements indicating that persons are unwelcome because of gender

identity will be referred to as the “speech ban.”

Both the Act and City Code broadly define “public accommodation” to include private

establishments when they offer services, facilities, or goods to nonmembers. See Iowa Code §



216.2(13)(a); Des Moines City Code § 62-1. Both of these laws purport to exempt “bona fide

religious institutions” when they impose “qualifications … related to a bona fide religious

purpose.” Iowa Code § 216.7(2)(a); Des Moines City Code § 62-137(1) (“religious institution

exemption”). That critical phrase, though, is not defined.

But the Commission issued a publication that interprets the religious institution exemption

narrowly. The guide, entitled “Sexual Orientation & Gender Identity: A Public Accommodations

Provider’s Guide to Iowa Law,”4 singles out one entity and poses the question, “Does This Law

Apply to Churches?” The answer:

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). (emphasis supplied.)

The guide goes on to state that it violates the facility-use mandate and speech ban to even

inquire about an individual’s gender identity in conjunction with that person’s use of a sex-specific

restroom, locker room, or shower area. The Iowa Civil Rights Commission has the power to

interpret, administer, and enforce the Act; it has broad remedial powers, including, but not limited

to, seeking monetary damages, legal fees, costs, and injunctive relief. See id. §§ 216.5, 216.15; see

also Rent-A-Center, Inc. v. Iowa Civil Rights Com'n, 843 N.W.2d 727, 730 (Iowa 2014). While

the Des Moines Civil and Human Rights Commission has not issued an interpretation of the nearly-

identical City Code provision, it is reasonable to conclude the courts will give nearly identical

phrases identical meaning. The City Commission likewise has the authority to seek damages, fees,

costs and other remedial relief in its discretion. See Des Moines City Code § 62-42 and § 62-8.

4 This guide is available on the Commission’s website at https://icrc.iowa.gov/sites/default/files/publications/2012/SOGIPublicAccom.pdf, last visited July 2, 2016.



The Church’s Desired Conduct and Chilled Speech

Deeply concerned about the Act’s and City Code’s application to churches and the severe

penalties for violating these laws, the Church has refrained from allowing its pastor to preach

publicly about the Church’s beliefs on biological sex and gender identity, even though the Church

wants to do so. Attached to the Declaration of Pastor Michael Demastus, filed herewith, is the

sermon he would deliver during a Sunday worship service to members and other attendees

regarding the Church’s beliefs concerning biological sex. He has not delivered the sermon because

of the speech ban; any person claiming to feel “unwelcome” on account of gender identity could

file a complaint with the Commission, or the Commission could initiate its own enforcement

action, subjecting the Church to investigations, hearings, and substantial penalties.

The Church also took steps to formalize and publish its unwritten restroom and shower

policy. The Church leadership team adopted a written policy to clearly set forth the Church’s

religious beliefs about biological sex and its facility use, which is attached to the Verified

Complaint. It wants to include the policy on the church website, in the weekly bulletin, and through

other means to ensure that the Church teaches and publicly conveys a consistent message regarding

its religious beliefs about sexuality.5 And because the Church loves and welcomes all people, it

wants to clearly communicate its policy to avoid embarrassing or awkward situations for both

those who identify as transgender and for its own members. But because the Commission interprets

the Civil Rights Act to apply to churches, the Church fears publicizing or distributing this policy.

ARGUMENT

The Church needs a preliminary injunction to avoid the imminent loss of constitutional

rights. To obtain one, the Church must establish (1) a likelihood of success on the merits; (2)

5 The written policy of the Church is attached to the Ver. Compl. as Ex. A.



irreparable harm; (3) that the balance of the harms are in its favor; and (4) that granting the

injunction is in the public interest. See Child Evangelism Fellowship of Minn. v. Minneapolis

Special Sch. Dist. No. 1, 690 F.3d 996, 1000 (8th Cir. 2012). The Church satisfies this standard.

I. The Church Will Likely Succeed in Showing that the Act and City Code Violate the First and Fourteenth Amendments.

The First and Fourteenth Amendments protect the Church’s right to both communicate its

doctrine and govern its affairs. But the Commission and its interpretation of Iowa Code

§§ 216.2(13) and 216.7, and the City Code, chill the Church’s speech and compels it to use its

facilities in a way that violates its beliefs without a compelling government interest, violating both

the Religion Clauses and the Free Speech Clause. Additionally, the speech ban (§ 216.7(1)(b)) is

unconstitutionally overbroad, and both the speech ban and the religious institutions exemption (§

216.7 (2)(a)) are unconstitutionally vague, infringing the Church’s Due Process and Free Speech

rights.6

A. The facility-use mandate violates the Church’s constitutional right to determine its religious beliefs about human sexuality, teach those beliefs to its members and to the public, and control its facility in a manner that is consistent with its religious beliefs without government interference.

The Free Exercise and Establishment Clauses of the First Amendment protect the Church’s

right to communicate its faith. For that right to endure, the First Amendment shields the autonomy

of the Church, free from government interference, to select its doctrine, teach its doctrine,

determine with whom it shares its doctrine, and to administer its facilities in a manner consistent

with its doctrine. The Church’s religious beliefs regarding human sexuality and the manner in

which it communicates those beliefs through its teaching and control of its facility are

constitutionally-protected determinations.

6 The Church raises additional claims in its complaint and reserves the right to pursue them in later filings.



The Free Exercise and Establishment Clauses guarantee houses of worship and other

religious organizations the right to determine free from government intrusion, their own doctrine,

polity, worship services, teaching, relationships with ministers and members, and other internal

governance. See Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America,

344 U.S. 94, 116 (1952) (striking down a state law determining the use of a cathedral); Rayburn

v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1168 (4th Cir. 1985) (dismissing

suit based on sexual and racial discrimination); Hosanna-Tabor Evangelical Lutheran Church &

Sch v EEOC, 132 S.Ct 694, 711-12 (2012) (“When a minister who has been fired sues her church

alleging that her termination was discriminatory, the First Amendment has struck the balance for

us. The church must be free to choose those who will guide it on its way.”). “The principles

articulated in the church autonomy line of cases also apply to civil rights cases.” Bryce v. Episcopal

Church in the Diocese of Colo., 289 F.3d 648, 656 (10th Cir. 2002). The First Amendment has

long recognized “a private sphere within which religious bodies are free to govern themselves in

accordance with their own [religious] beliefs.” Id. at 712.

Indeed, the First Amendment—and especially the Religion Clauses—“radiat[e] ... a spirit

of freedom for religious organizations, an independence from secular control or manipulation, in

short, power to decide for themselves, free from state interference, matters of church government

as well as those of faith and doctrine.” Kedroff, 344 U.S. at 116. Under the church autonomy

doctrine, the threshold inquiry for the court is whether the actions complained of are “rooted in

religious belief.” Bryce, 289 F.3d 657. Protecting a church’s right to express or communicate its

faith necessarily includes preventing the government from interfering “in the way that the church

wishes its doctrine to be expressed,” otherwise the government may engage in improper “back-



door doctrinal determination[s].” Menorah Chapels at Millburn v. Needle, 899 A.2d 316, 321

(N.J. 2006).

The church autonomy doctrine applies to court decisions and legislative enactments alike.

At issue in Kedroff was the validity of a state law determining the control of a cathedral. Kedroff,

344 U.S. at 115. A New York state law required every Russian Orthodox church within the state

to recognize as authoritative the decisions of the governing body of North American churches,

instead of the supreme authority of the Russian Orthodox church in Moscow. The Court

invalidated the law because the right to use the church building was strictly a matter of

ecclesiastical government over which the state had no authority and was an intrusion into the

“forbidden area of religious freedom contrary to the principles of the First Amendment.” Id. at

119.

The U.S. Supreme Court’s most recent pronouncement of the church autonomy principle

dealt with the right of religious organizations to select their leaders, even when the government is

enforcing nondiscrimination laws. See Hosanna-Tabor, 132 S.Ct. at 711-12. (“The First

Amendment protects the freedom of religious groups to engage in certain key religious activities,

including the … critical process of communicating the faith.”) (Alito, J. and Kagan, J., concurring).

The Court concluded that the Religion Clauses of the First Amendment protect a private sphere

within which religious bodies are free to govern themselves without interference by the

government even when enforcing its nondiscrimination laws. “Such action interferes with the

internal governance of the church,” how the church’s beliefs will be personified, and the church’s

“right to shape its own faith and mission.” Id. at 706.



A house of worship embodies and furthers the religious expression of its congregants.

Religion includes important communal elements for most believers, and they exercise their

religion through religious organizations, churches being paramount:

Determining that certain activities are in furtherance of an organization’s religious mission …is thus a means by which a religious community defines itself. Solicitude for a church’s ability to do so reflects the idea that furtherance of the autonomy of religious organizations often furthers individual religious freedom as well.

Corp. of Presiding Bishop of Church of Jesus Christ of Latter–Day Saints v. Amos, 483 U.S. 327,

342 (1987) (Brennan, J., concurring).

The facility-use mandate clearly intrudes into the “forbidden area” of the Church’s freedom

to determine its worship services, how it communicates its faith, its doctrine, and the use of its

facility in a manner consistent with and in the furtherance of that doctrine. Specifically, the facility

use mandate:

1. contradicts the Church’s doctrine that when it offers services, facilities, or goods to nonmembers—even gratuitously, see id. § 216.2(13)(a)—like when it welcomes visitors to its worship services, youth activities, or community events—it is engaged in a religious activity;

2. is predicated on the inherently religious, and therefore improper, judgment that a church’s control of its facility is not reflective of the Church’s ability to communicate its beliefs, govern itself, or determine its religious identity;

3. interferes with the Church’s right to communicate its beliefs;

4. encroaches upon the authority of the Church’s ecclesiastical government of its own affairs; and

5. coerces the Church to abandon its religious beliefs regarding human sexuality.

The Commission’s failure to recognize that the facility-use mandate directly interferes with

the Church’s ecclesiastical authority to inculcate its faith illustrates the importance of the First

Amendment’s protection against “secular control or manipulation.” Kedroff, 344 U.S at 116.

Iowa’s enforcement of the facility-use mandate against churches implicates religious

liberty interests similar to those threatened when the government interferes with the right of



religious organizations to choose their own religious leaders. See Hosanna-Tabor, 132 S.Ct. at

706. As when the government attempts to enforce employment nondiscrimination laws in the

selection of spiritual leaders, the facility-use mandate encroaches upon the Church’s internal

governance of its facility, how the Church’s religious beliefs and teaching regarding sex will be

embodied in the use of its own building, and the Church’s right to shape its own faith and mission.

Id.

Applying the facility-use mandate to houses of worship because they invite visitors to

attend religious services and other events at the Church clearly misunderstands the unique and

communal purpose of religious organizations, which embody and further the religious expression

of their communities. The Church determined that its policy regarding access to its restrooms and

showers should be consistent with its understanding of the Bible’s teaching regarding the

immutability and complementariness of the male and female sexes. This is a self-defining decision

of the Church’s religious community.

The facility-use mandate also violates the Establishment Clause because it empowers the

Commission to force churches to change their religious-based policies regarding access to its

showers and restrooms. The Establishment Clause prohibits government involvement in such

ecclesiastical decisions. See Hosanna-Tabor, 132 S.Ct. at 706. Even the risk of a government

actor determining “whether an activity is religious or secular requires a searching case-by-case

analysis” that results in “considerable ongoing government entanglement in religious affairs.”

Amos, 483 U.S. at 343.

The Act and the Commission’s declaration that the facility-use mandate will be enforced

against the Church, and other Iowa houses of worship, is a disturbing and unprecedented

interference “with the internal governance of the church,” how the church’s beliefs will be



personified, and the church’s “right to shape its own faith and mission.” Hosanna-Tabor, 132 S.Ct,

at 706. The facility-use mandate is unconstitutional and the Church can, therefore, demonstrate

that it is likely to succeed on the merits of its Free Exercise and Establishment claims.

B. The speech ban violates the Church’s right to communicate its doctrine and control its facility use.

The Church wants to communicate its beliefs concerning God’s design for human sexuality

in at least three mutually-reinforcing ways: teaching from the Bible, publishing its shower and

restroom policy and explaining how it is consistent with that teaching, and posting the policy on

its website and in the bulletin it distributes to all who attend its Sunday worship services to ensure

that is policy is consistently observed. But the speech ban prohibits this constitutionally-protected

speech in violation of the First Amendment.

1. The speech ban regulates constitutionally-protected religious speech.

The speech ban prohibits covered entities from “directly or indirectly advertis[ing] or in

any other manner indicat[ing]” that “persons of any particular…gender identity” are “unwelcome,

objectionable, not acceptable, or not solicited.” The speech ban is so broadly written that, when

applied to the Church, it prohibits the Church from delivering the sermon regarding its biblical

beliefs of human sexuality, discussing those beliefs in connection with its shower and restroom

policy, and distributing that policy so that its beliefs are consistently followed by those who use

its facility. As applied to the Church, the speech ban chills and prohibits religious speech. The

Church wants to communicate its doctrine and its biblically-informed application of that doctrine.

Private religious speech, “far from being a First Amendment orphan,” enjoys full and robust

protection under the Free Speech Clause. Capitol Square Review & Advisory Bd. v. Pinette, 515

U.S. 753, 760 (1995).



2. The speech ban is content and viewpoint based.

“It is axiomatic that the government may not regulate speech based on its substantive

content….” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). A law

regulates content if it “draws distinctions based on the message a speaker conveys.” Reed v. Town

of Gilbert, Ariz., 135 S.Ct. 2218, 2227 (2015). Yet the speech ban does precisely this. It prohibits

speech about certain topics (gender identity) and permits speech about other topics (helping the

poor), tethering legality to the message expressed. The Commission cannot evaluate the Church’s

compliance with the speech ban without considering the idea or message it communicates—

making the speech ban a textbook example of content-based restriction.

But not only is the speech ban a content-based restriction, it perpetrates a particularly

“egregious form of content discrimination” called viewpoint discrimination. Rosenberger, 515

U.S. at 829. Viewpoint discrimination targets not only speech content, but the “particular views

taken by speakers on a subject.” Id. The Act’s speech ban allows for this noxious discrimination:

the Act permits speech that is perceived as “welcoming” and consistent with the Commission’s

views about gender identity, but proscribes speech that is perceived as “unwelcoming” or

objectionable. See § 216.7(1)(b). This is classic viewpoint discrimination.

3. The speech ban fails strict scrutiny.

Both content and viewpoint-based speech restrictions are presumptively unconstitutional.

See Reed, 135 S.Ct. at 2226 (“Content-based laws—those that target speech based on its

communicative content—are presumptively unconstitutional….”). The Commission cannot

overcome this presumption by portraying the Church’s speech as promoting an illegal activity

banned under the facility-use mandate. As discussed above, the Church has a constitutional right

to direct and control its facility in harmony with its religious beliefs. This includes establishing



standards for the use of sex-specific facilities. Communicating these standards, as the Church

wants to do, is therefore lawful activity.

Thus, the Commission must justify its speech ban by proving that it is narrowly tailored to

serve compelling state interests. See Reed, 135 S.Ct. at 2226. It cannot meet this standard. The

Commission has no compelling interest in censoring religious messages or ideas—especially those

doctrinal beliefs expressed within a house of worship. The Church’s religious beliefs are

fundamental to their understanding of the Bible’s teaching regarding the immutability and

complementariness of sex. Their beliefs are hardly new. The founder of their faith, Jesus Christ,

taught in Matthew 19:4: “Haven’t you read … that at the beginning the Creator ‘made them male

and female.”

Nor can the Commission justify its goal by trying to shelter people from ideas they may

find disagreeable. “If there is a bedrock principle underlying the First Amendment, it is that the

government may not prohibit the expression of an idea simply because society finds the idea itself

offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989).

Furthermore, the speech ban lacks narrow tailoring. It does not merely ban words declining

to admit persons to accommodations or facilities, but it also bans communications that “in any

other manner indicate” that someone would be “unwelcome, objectionable, not acceptable, or not

solicited” based on protected characteristics. Any criticism of a group or ideas associated with a

group could imply that group is unwelcome. This sweeps in a substantial amount of

constitutionally-protected expression, as discussed in greater detail below regarding overbreadth.

Thus, the Commission cannot satisfy strict scrutiny. Its content and viewpoint-based speech

restrictions are unconstitutional and the Church can therefore demonstrate that it is likely to

succeed on the merits of its Free Speech claim.



C. The religious institution exemption and speech ban are unconstitutionally vague in violation of the Fourteenth Amendment.

While the Commission has clearly interpreted the Act to apply to churches, the Act’s

imprecise language opens the door to this and numerous other interpretations, rendering it

unconstitutionally vague. Vague, imprecise laws violate the Fourteenth Amendment Due Process

guarantee by “fail[ing] to provide the kind of notice that will enable ordinary people to understand

what conduct [the law] prohibits….” City of Chicago v. Morales, 527 U.S. 41, 56 (1999); see also

Woodis v. Westark Community College, 160 F.3d 435, 438 (8th Cir. 1998) (“The void-for-

vagueness doctrine is embodied in the due process clauses of the fifth and fourteenth

amendments.”).

“[W]hen First Amendment freedoms are at stake, an even greater degree of specificity and

clarity of laws is required.” Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998). Laws

that interfere with free speech are subject to more exacting scrutiny and require greater definiteness

than other contexts. See Video Software Dealers Ass'n v. Webster, 968 F.2d 684, 689-90 (8th Cir.

1992) (“A stringent vagueness test applies to a law that interferes with the right of free speech”);

see also Woodis, 160 F.3d at 438 (“In a facial vagueness challenge, an enactment reaching a

substantial amount of constitutionally protected conduct may withstand constitutional scrutiny

only if it incorporates a high level of definiteness.”). And for good reason. In the face of vague

laws, citizens voluntarily curtail their First Amendment activities because they fear that those

activities could be characterized as illegal. See Grayned v. City of Rockford, 408 U.S. 104, 109

(1972). The Church, for example, has self-censored not only its speech about how its facilities are

to be used, but has also self-censored what its church leaders preach from the pulpit.

The Act is vague in two respects. First, the “bona fide religious purpose” exemption is

vague as-applied because it lacks any clear definition. The facility-use mandate and speech ban in



Section 216.7(1) do not apply to “religious organizations” as defined by the religious institutions

exemption: “[a]ny 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.” Iowa Code § 216.7(2)(a) The Act fails to define a “bona

fide religious purpose.” The surrounding statute offers no narrowing context and neither the

Commission nor Iowa courts have yet to interpret this term of art. “[W]ithout statutory definitions,

narrowing context, or settled legal meanings,” persons of ordinary intelligence—including the

Church—are left to speculate about what qualifies as a bona fide religious purpose. U.S. v.

Williams, 553 U.S. 285, 306 (2008).

Such persons might reasonably assume that—at a minimum—church activities would

qualify as a “bona fide religious purpose.” But not according to the Commission. Astonishingly,

the Commission’s official guidance stating that churches must comply with the Act when their

activities are not related to a bona fide religious purpose, concludes that a “church service open to

the public” is not a bona fide religious purpose.

After the Church commenced this lawsuit, on July 8, 2016 the Commission issued a press

release and revision to its guide: “Sexual Orientation & Gender Identity: A Public

Accommodations Provider’s Guide to Iowa Law.”7 The guide continues to single out houses of

worship for special instruction and offers a new interpretation of the religious institution

exemption:

Places of worship (e.g. churches, synagogues, mosques, etc.) are generally exempt from the Iowa law’s prohibition of discrimination, unless the place of worship engages in non-religious activities which are open to the public. For example, the law may apply to an independent day care or polling place located on the premises of the place of worship.8 (emphasis supplied.)

7 https://icrc.iowa.gov/pressrelease/iowa-civil-rights-commission-releases-revised-sexual-orientation-gender-identity-public, last viewed July 11, 2016. 8 https://icrc.iowa.gov/sites/default/files/publications/2016/2016.sogi .pa1 .pdf, last viewed July 11, 2016.



But the Commission’s revisions only serve to highlight the vagueness and imprecision of

the exemption and leave the door wide-open to numerous (additional) interpretations. What does

the Commission consider to be “non-religious activities?” What standard or analytical tool will it

employ so that churches may anticipate and avoid Commission intervention and liability? No

Commission rule defines the newly-minted term. Persons of ordinary intelligence are left to

speculate about what qualifies as a “non-religious activity.” U.S. v. Williams, 553 U.S. at 306.

Second, the speech ban is also vague, both facially and as-applied. Section § 216.7(1)(b)

makes it a discriminatory practice “[t]o directly or indirectly advertise or in any other manner

indicate or publicize that the patronage of persons…is unwelcome, objectionable, not acceptable,

or not solicited.” The terms “in any other manner indicate,” and “unwelcome, objectionable, not

acceptable, or not solicited” are not defined by statute, context, or settled legal meaning. Unmoored

from objective definition, the phrase to “in any other manner indicate” appears to encompass

expression ranging from pure speech (like a sermon, posting signs, and verbal speech) to

expressive conduct (like shaking one’s head). And identifying “unwelcome” or “objectionable”

speech is a subjective judgment wholly determined by the hearer’s interpretation of the speech,

not a clear objective standard. Even a pastor’s sermon addressing God’s design for human

sexuality could be interpreted as “unwelcome.” The plausible interpretations of these vagaries are

nearly boundless, especially since the Act must be construed broadly.

Without clear definitions of a “bona fide religious purpose,” what it means to “in any other

manner indicate,” and what statements are “unwelcome, objectionable, not acceptable or not

solicited,” the statute lacks any narrowly drawn, reasonably definite standard for identifying what

expression and conduct it prohibits. People of ordinary intelligence—pastors or Commissioners—

must guess at the statute’s meaning.



As a result, the statute is impermissibly vague and thereby unconstitutional on due process

grounds. A preliminary injunction is necessary to stop the chilling effect both on the Church and

on other non-parties not before this Court. See Members of City Council of City of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 801 (noting that the purpose of facial challenges for

overbreadth and vagueness is to prevent any chilling effect that imprecise or overly inclusive rules

may have on the exercise of protected speech by non-parties.).

D. The speech ban is unconstitutionally overbroad in violation of the First Amendment.

“The Constitution gives significant protection from overbroad laws that chill speech within

the First Amendment’s vast and privileged sphere.” Ashcroft v. Free Speech Coal., 535 U.S. 234,

244 (2002). The speech ban is unconstitutionally overbroad on its face because it sweeps within

its ambit a substantial amount of constitutionally-protected expression. See Phelps-Roper v. City

of Manchester, Mo., 697 F.3d 678, 685 (8th Cir. 2012) (“An ordinance may also be invalidated on

a facial First Amendment challenge as overbroad if a substantial number of its applications are

unconstitutional, judged in relation to its plainly legitimate sweep.”).

According to the Act and the Commission’s interpretation, both the facility-use mandate

and the speech ban apply to the Church when it is not engaged in a “bona fide religious purpose,”

such as when it holds church services or other events open to the public. This interpretation of the

Act sweeps within its ambit private religious speech that occurs before, during, and after worship

services and all other religious programming. This language not only prohibits the Church from

teaching about God’s design for human sexuality, and publishing its restroom and shower policy,

but it also appears to prohibit Church leaders from even responding with a negative answer to

questions about shower and restroom access.



Furthermore, the speech ban is substantially similar to speech codes that have been struck

down as overbroad because they too chilled free expression by “inhibiting the speech of third

parties who are not before the court. See Saxe v. State College Area Sch. Dist., 240 F.3d. 200, 215

(3rd Cir. 2001) (invalidating school policy that banned “any unwelcome verbal … conduct which

offends … because of” protected characteristics); Armstrong v. Dist. of Columbia Pub. Library,

154 F.Supp.2d 67, 78-79 (D.D.C. 2001) (invalidating a regulation denying library access to patrons

with “objectionable appearance”).

As discussed above, the Church has the First Amendment right to control its doctrine,

beliefs, worship services, operations, polity, and facility in harmony with its religious beliefs. This

includes establishing standards for the use of sex-specific facilities. Communicating these

standards, as the Church wants to do, is therefore lawful activity.

II. The Church is Suffering Irreparable Harm.

“When a plaintiff has shown a likely violation of his or her First Amendment rights, the

other requirements for obtaining a preliminary injunction are generally deemed to have been

satisfied.” Minn. Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 870 (8th Cir. 2012)

(en banc). The Iowa Civil Rights Commission represses the Church’s freedom to communicate its

beliefs and tramples on its freedom to use its facility consistent with its faith. That harm is ongoing

and irreparable. Fearing reprisal, the Church chills and self-censors its speech. The “loss of First

Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable

injury.” Powell v. Noble, 798 F.3d 690, 702 (8th Cir. 2015) (quoting Elrod v. Burns, 427 U.S. 347,

373 (1976) (plurality)). Only injunctive relief can stop further harm to the Church’s First and

Fourteenth Amendment rights.



III. The Balance of Hardships Favors the Church.

Without an injunction, the Church continues to lose its free speech, free exercise, and due

process rights. With an injunction, the Commission loses nothing because “the Government does

not have an interest in the enforcement of an unconstitutional law.” Am. Civil Liberties Union v.

Ashcroft, 322 F.3d 240, 247 (3d Cir. 2003). Thus, the balance of hardships favors the Church.

IV. Public Policy Favors a Preliminary Injunction For the Church.

Finally, it is axiomatic that protection of First Amendment rights serves the public interest.

See Minn. Citizens Concerned for Life, 692 F.3d at 870. The public benefits when churches, like

Fort Des Moines Church of Christ, can continue communicating their message of hope and

redemption in Jesus Christ, and welcoming all to enter and observe those beliefs reflected

consistently in everything from the pulpit, to the pew, to the use of its facility.

CONCLUSION

The church is not a sandwich shop. While the government has more leeway to regulate the

latter, that leeway stops at the church door. To accomplish its religious mission—the proclamation

and inculcation of religious doctrine—the church must have the autonomy to choose its beliefs,

teach those beliefs, and operate by those beliefs. The Commission has now bulldozed that

autonomy and deterred the Church from teaching and operating by its religious beliefs. The Church

therefore asks this Court for a preliminary injunction to stop this ongoing constitutional harm and

to restore its control over its showers and restrooms, its sanctuary, and its pulpit.



Dated: July 13, 2016

Respectfully submitted, /s/ Steven O’Ban

Steven O’Ban* Erik Stanley* Jeremy Tedesco* ALLIANCE DEFENDING FREEDOM 15100 N 90th St Scottsdale, AZ 85260 Tel.: 480-444-0020 Fax: 480-444-0028 [email protected] Christiana Holcomb* ALLIANCE DEFENDING FREEDOM 440 First Street NW, Suite 600 Washington, DC 20001 Tel.: 202-393-8690

Not licensed in DC Practice limited to federal court Timm Reid 300 Walnut St Suite 5 Des Moines, IA 50309 Tel.: 800-217-9312 [email protected] Attorneys for Plaintiff *Admitted pro hac vice







CM/ECF system.

Date: July 13, 2016

/s/ Steven O’Ban

Steven O’Ban






CM/ECF system.

Date: July 13th, 2016

/s/ Steven O’Ban

Steven O’Ban


EXHIBIT A


1

A Biblical View of Human Sexuality By Pastor Michael Demastus

I believe it is critical for the church to be able to respond to current issues and to do so through a biblical lens. Let me begin my remarks today by saying that as we do this, as we speak to current issues, especially issues as they relate to human sexuality, that the use of derogatory language or crude terminology is sincerely out of place and out of bounds with the teachings of Jesus Christ. There is no place for that kind of behavior. Churches like Westboro Baptist Church are antithetical to the way and person of Christ Jesus. All Christians should easily be able to see that they do not represent a biblical worldview. Every individual is uniquely created in the image of God and has inherent value and worth as a human being who is loved by God. The apostle Paul said… Ephesians 4:29 Do not let any unwholesome talk come out of your mouths, but only what is helpful for building others up according to their needs, that it may benefit those who listen. (NIV) Now this does not mean that it is wrong to call sin a sin. But it does indeed mean that we must call sin a sin in a loving and humble manner. We recognize that we too were forgiven of sin in our own lives from our Savior. But it is important to also understand that to receive God’s forgiveness, we must first of all admit that we have sinned. And that, my friends, is the problem with the modern worldviews surrounding sexuality and gender identity in our culture. Forgiveness is not possible unless we are first willing to admit that we have violated God’s standard. So it becomes critical to know what God’s standard is. Does he have a plan for human sexuality? Are there boundaries he has given us for our good? How do we determine gender in God’s eyes? I want you to turn in your Scriptures to 1 Corinthians 6. This was written to people in a town called Corinth. A very pagan town. Paul wrote them to especially deal with their view of the body. And you need to know that my goal for us this morning as we enter into this topic is for us to just focus on this one central concept of how God himself views our body. If we can begin to see as God sees then we will more likely find the blessing that follows from doing as God says.


2

Part of the reason we go to extremes today is because we fail to see things as God sees them. Human sexuality, gender identity, all of it is taken to extremes when we fail to see those issues from God’s perspective. 1 Corinthians 6:19‐20 Do you not know that your body is a temple of the Holy Spirit, who is in you, whom you have received from God? You are not your own; you were bought at a price. Therefore honor God with your body. (NIV) Do you not know…and most of us do not know, honestly. We had no idea that our body is a TEMPLE of the Holy Spirit who is inside of us! When the Corinthians originally read this letter something immediate came to their mind because they had a huge temple right in the middle of their city. In Corinth there was a temple to the goddess Aphrodite. And so when he wrote TEMPLE they thought, “Oh the temple!” They knew what a temple was. We don’t. A temple was a building that had been erected to elicit worship toward a deity. That when you went to the temple you there for one specific purpose, that was to give your time and devotion to your god. In the Old Testament the Jews had a temple, and in that temple the Spirit of God dwelled in the ark of the covenant. You remember those stories. And the Jews would go into the temple with the purpose of worshiping God, being cleansed from their sins, connecting the best that they could with their God. The temple was all about worship. And the Apostle Paul says, “Okay, I don’t know what you’ve been thinking about your body but let me tell you what God says about your body. It’s a temple. And for those of you who have put your faith in Christ, the Holy Spirit has moved into your body and you house a piece of deity, and God views you as a temple.” Your body is not to be worshiped, neither is it to be neglected because your body is a temple. Paul goes on to say, “You are not your own; you were bought at a price.” This is news for many of us because he’s not just talking about anything, he’s talking about your body. God would say, “That body that you spend so much time and attention and money on – head’s up, it’s not yours.” God would tell us that we have misunderstood. We’ve thought it was our body. But it is his. It belongs to God. My body is not my own because God created me and the Creator owns the creation. And God purchased me. He sent his Son to die for me. He bought me with blood. I belong to him.


3

And listen, if you are not a Christian, your body still belongs to God. He is still your Creator and he owns his creation. And if you are a Christian, then your body doubly belongs to God because he purchased you. He died and paid for you. Paul concludes in our text by saying, “Therefore honor God with your body.” In other words God says, “If you want to know what I think you should do with your body. Don’t worship it, don’t neglect it, honor me with it. Magnify me with it. Use your body to reflect back to me who I am, my love, my grace, my character, my patience, my mercy.” I want to look at one more quick verse, and I want to put these two verses together to build the case for where I am headed in dealing with the issue of gender identity. I want to lay this foundation first. Look at what Paul wrote to another group of Christians in the city of Colossae… Colossians 1:16 For by him all things were created: things in heaven and on earth, visible and invisible, whether thrones or powers or rulers or authorities; all things were created by him and for him. (NIV) Now if you put these two passages together, here’s what you get: Your body was made by God, for God to honor God. You see I want to begin on that foundation. That we were made by God, for God to honor God. Because we need to understand that everything that has been created has been created for a purpose. Even if it was just for pure enjoyment. I grew up not far from Cocoa Beach, Florida. People would make sandcastles on the beach. Sometimes they were elaborate works. And they would ultimately just be washed away. The people that made them did it because they just wanted to enjoy them. All the way to something as intricate as a laptop computer there is always a purpose in the mind of the creator. You were made for a purpose. It is only in relationship to the Creator do we find our purpose and in the Bible his purpose is revealed to us clearly. In God’s Word, we not only find our purpose for why we were created but we also see God’s revealed standard for how we are to find are true identity. Now what does the Bible say about maleness and femaleness? I believe that God’s Word could not be any more clear on this issue. And it is in times where there is so much confusion and so many questions on such topics that the Christian can only rely on the One voice that has stood the test of time. The voice of Almighty God through his Word.


4

Matthew 19:4 "Haven't you read," he replied, "that at the beginning the Creator 'made them male and female” (NIV) In the economy of God, concerning sex there is only male and female. There are only two available options. And those options are fixed, complementary and confirmed through chromosomes and physiology. Now when an absolute statement like this is made, many questions are immediately brought up. What about someone born with both sex organs (also known as hermaphroditism)? This is an incredibly rare condition that affects about 1 in 2000 births. It is the exception that proves the rule. Moreover, the person born with this condition is still either male or female even if there is a mutation that has both organs in their reproductive organ development. Chromosomes do not lie. There is still only the possibility of XX or XY. And it testifies to God’s original design. Genesis 1:27 So God created man in his own image, in the image of God he created him; male and female he created them. (NIV) What about the individual who truly believes that they are trapped in a body of the wrong gender? We have to ask the question does God make mistakes? If God has created us for a purpose, can he make mistakes in doing this? Of course not. But, if we understand that this world has been marred and broken , we have to understand that brokenness is systemic in nature. Sin has effected everything. Even our very source of identity. Gender identity (also called gender dysphoria) is an emotional disorder. Dr. Paul McHugh, the former psychiatrist‐in‐chief for Johns Hopkins recently said, “Gender identity confusion is a mental disorder in two respects. The first is that the idea of sex misalignment is simply mistaken – it does not correspond with physical reality. The second is that it can lead to grim psychological outcomes.” Dr. McHugh added that 70‐80% of children who had expressed transgender feelings over time “spontaneously lost those feelings.” 1

1 http://www.cnsnews.com/news/article/michael‐w‐chapman/johns‐hopkins‐psychiatrist‐transgender‐mental‐disorder‐sex‐change


5

I agree with him 100%. We need to understand that there are people that genuinely struggle with gender confusion and need treatment. But the loving response from the body of Christ should be one of affirming God’s beautiful gift of their sex . It is to be celebrated not rejected. In recent months the issue of sexual identity and gender identity has moved from an academic discussion to an outright war in our culture. This has become the new civil rights movement. And to speak against a “transgender” individual using a restroom of their choice is hate speech. It isn’t just a widely accepted idea anymore that grown men should not be using the same bathroom as little girls. Those fighting for transgender rights in this new culture war are arguing directly against what I have been teaching you this morning. They would say that gender is non‐binary. That people can consider themselves “gender fluid” (meaning that gender identity is a continuum, and based on subjective feelings). They would say that pointing out that they cannot biologically function in both genders but only the gender of their biological birth is offensive and unwelcome. . Some individuals with gender dysphoria go so far as having surgery to change their anatomical structure. And sadly what happens in these cases is their sex organs will be non‐functional for the rest of their lives and their bodies will even treat such surgeries as a wound. Dr. McHugh confirms the very sad truth that the suicide rate of individuals who have undergone the surgery is statistically observable. That is why we need to respond with love and compassion to these individuals. When we remove ourselves from the simple truth that God has created us for a purpose. That we were created by God, for God to honor God. Only confusion and hurt replace those truths. The follower of Jesus Christ understands that our true identity is found only in Christ. We know that God only created male or female. There is no third option. The gender we have been given at birth is a beautiful gift from God that needs to be celebrated. We need to recapture biblical masculinity and femininity. And we need to love everyone regardless of whether they accept biblical truth on these matters or not. It is only by our consistent love, our unwavering stand on truth and confidence in Christ Jesus that the world will begin to open itself up to these things. PRAY



SOUTHERN DISTRICT

Fort Des Moines Church of Christ, a nonprofit religious corporation,

Plaintiff,

v.


Defendants.

) ) ) ) ) Case No. 4:16-cv-00403-SMR-CFB ) ) ) ORDER FOR PRELIMINARY ) INJUCTION [Proposed] ) ) Oral Argument Requested ) ) ) ) ) ) )

ORDER

This matter is before the Court on Plaintiff’s motion for preliminary injunction. Having

reviewed the Plaintiff’s motion for preliminary injunction, memorandum in support, declaration

and exhibit thereto, Defendants’ response, and Plaintiff’s reply, and having heard oral argument

presented by counsel for the parties,

IT IS HEREBY ORDERED THAT:

1) Plaintiff’s motion is GRANTED;

2) Defendants Angela Jackson, Patricia Lipski, Mathew Hosford, Tom Conley, Douglas

Oelschlaeger, Lily Lijun Hou, and Lawrence Cunningham, in their official capacities

Case 4:16-cv-00403-SMR-CFB Document 10 Filed 07/13/16 Page 1 of 4

2

as Commissioners of the Iowa Civil Rights Commission; Kristen H. Johnson, in her

official capacity as the Executive Director of the Iowa Civil Rights Commission; Tom

Miller, in his capacity as the Attorney General of the state of Iowa; and the City of

Des Moines, Iowa, and any persons in active concert with them who receive notice of

this order, are preliminarily enjoined from enforcing I.C.A §216.7(1)(a) and

§216.7(1)(b), and Des Moines City Code, § 62-136(1) and (2), against Plaintiff Fort

Des Moines Church of Christ.

This injunction shall remain in place throughout the course of this litigation and until this

Court orders otherwise. Further, because this injunction protects fundamental constitutional

rights and Defendants will not suffer any harm from this injunction, this Court does not require

bond or any other security.

Done in open court ________, 2016

____________________________________ The Honorable Stephanie M. Rose


3

Presented this 13th day of July, 2016: /s/ Steven O’Ban TIMM REID 300 Walnut St Suite 5 Des Moines, IA 50309 (800)-217-9312 (515)-282-0318 Fax [email protected]

STEVEN O’BAN ERIK STANLEY JEREMY TEDESCO ALLIANCE DEFENDING FREEDOM 15100 N. 90th St. Scottsdale, Arizona 85260 (480) 444-0020 (480) 444-0028 Fax [email protected] [email protected] [email protected] CHRISTIANA HOLCOMB ALLIANCE DEFENDING FREEDOM 440 1st St NW Suite 600 Washington, DC 20001 (202) 393-8690 (202) 347-3622 Fax [email protected] Not licensed in DC Practice limited to Federal Court

*Admitted pro hac vice

Attorneys for Plaintiffs

THIS DOCUMENT HAS BEEN ELECTRONICALLY FILED


4


I hereby certify that on July 13, 2016, I electronically filed the foregoing paper with the

Clerk of Court using the ECF system.

By: /s/ Steven O’Ban Steven O’Ban Attorney for Plaintiffs


UNITED STATES DISTRICT COURT FOR THE SOUTHERN...

Documents

Transcript of UNITED STATES DISTRICT COURT FOR THE SOUTHERN...