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Is Iowa’s new Religious Freedom Restoration Act a license to discriminate?
Althea Cole
Apr. 7, 2024 5:00 am
Last week, Gov. Kim Reynolds signed Iowa’s Religious Freedom Restoration Act (RFRA.) While some hailed it as state-level protection of religious freedom mirroring that at the federal level, others decried it as a license to discriminate.
I’d be less suspicious of the latter characterization if opponents of the bill had more clear-cut examples of discrimination. In a news release bemoaning passage of the bill, Planned Parenthood Advocates of Iowa (PPAI) gave some examples of how they claimed the 1993 federal RFRA enabled discrimination. They were … interesting.
One claim detailed how the RFRA allowed craft store giant Hobby Lobby to deny insurance coverage for birth control. It didn’t mention that it was only certain types — or the other ways a woman can obtain free or low-cost birth control, including from … well, from Planned Parenthood.
Another PPAI claim cited a funeral home claiming the right under the federal RFRA to terminate a transgender employee for violating its dress code by dressing as their identified gender. It did not mention that the U.S. Supreme Court, through the exact same federal process that Iowa’s RFRA establishes at the state level, rejected the funeral home’s argument, siding with the fired employee.
PPAI’s last — and most interesting — claim stated that the federal RFRA allowed a member of a polygamous Mormonist sect to “refuse to cooperate” in a federal investigation into the group’s alleged continued violations of federal labor law.
Technically, it was true — but like the PPAI’s other claims about the RFRA, the example of the polygamous Mormonists lacks context, leading a person to conclude too hastily that the RFRA gives bad people a free pass from important laws. To understand whether the federal RFRA actually enabled child exploitation, it’s worth looking at the case — and considering the actual standards set by religious freedom protections.
Utah construction business Paragon Contractors Corporation and its owners were already under a permanent injunction barring them from violating the Fair Labor Standards Act after the court determined that the business had violated the portion of the law defining and prohibiting “oppressive child labor.” Paragon is owned by Brian Jessop, a leader in the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS,) a tight-knit, highly secretive polygamous group that exerts control over all aspects of its followers’ lives and is invariably considered a cult.
Starting in 2008, Paragon contracted with a pecan ranch in southern Utah to harvest pecans, receiving 30% of the ranch’s pecan harvest proceeds. In 2012, CNN aired a chilling video of hundreds of FLDS members, mostly children, many of them small children, working on the pecan farm. The video prompted investigators from the Department of Labor to open an investigation into whether Paragon was involved in violation of the existing injunction.
It was during this investigation that Vergel Steed, who was believed to work for the FLDS and have knowledge about the church, refused to answer questions about the church’s role in organizing and transporting the children to work at the pecan ranch. Steed cited his First Amendment rights to the free exercise of religion, which he said would be violated if he was compelled to answer the DOL’s questions.
After a magistrate judge recommended that Steed be made to answer investigators’ questions, a District Court stepped in and ruled that Steed’s objection must be reviewed according to the Religious Freedom Restoration Act. Under the RFRA, the DOL had not shown that forcing Steed to answer questions in violation of his religious belief was the least restrictive means of fulfilling the government’s compelling interest to obtain the information they were seeking.
“Compelling interest” and “least restrictive means” are loaded terms. They’re the bread and butter of the RFRA — at both the state and federal level — but they also show how the RFRA doesn’t actually give a free pass to just anyone citing any religious rights. Rather, the RFRA allows a person’s right to free expression of religion to be overridden if the government has a compelling interest in doing so, and if doing so is the least restrictive means by which the government can advance its compelling interest.
The court did not find that forcing Steed to answer questions was the least restrictive means of gathering information vital to their investigation because investigators still had the ability to seek the information from other sources, including Paragon owner Jessop and an agent of the business who testified to facilitating hundreds of kids and their parents to collect nuts on the pecan ranch.
Steed ended up not having to answer questions. Would that have been the case if no other less restrictive means were at the DOL’s disposal? Probably not — especially considering the government’s compelling interest in protecting children from exploitation.
The business did not get to hide behind religion to evade accountability. In 2016, the court ruled that Paragon, et. al was in contempt of the child labor injunction, finding that defendants had “told employees to lie about the child labor and even developed signals and strategies for hiding child workers.” When they tried to use child labor again under a different business, the court found the new business to be a successor in interest to Paragon and joined the new business to the injunction. In 2021, a judge ordered Jessop, along with the FLDS church and bishop Lyle Jeffs, to pay back wages to child workers totaling nearly $1 million. Lyle Jeffs is the brother and presumed second-in-command to church leader Warren Jeffs, who is serving a life sentence in federal prison for sexually assaulting two girls ages 12 and 15 who he took as “wives.”
They’re predators. And criminals. But religious protections have not given them a free pass to be predators and criminals. And we should not let the vile actions of a few stop us from extending protections to the many. Cases like the FLDS child labor exploitation are obvious examples of intolerable acts disguised as religion. But in most other scenarios, people are too sharply divided anymore on what does and does not constitute protected religious expression without a solid legal standard. The RFRA is that standard.
Opponents of Iowa’s RFRA claim that RFRA laws are used to violate the rights of women and LGBTQ+ people in the name of religion. They seem to have no problem when laws are used to violate religious freedom in the name of women’s and LGBTQ+ rights. They haven’t batted an eye so far:
In the name of women’s rights, the Affordable Care Act’s contraception mandate violated the religious freedom of Dordt College, now Dordt University, in northwest Iowa. Dordt has a strong and clearly stated affiliation with the Christian Reformed Church, which objects to contraceptives that prevent pregnancy post-fertilization. But the ACA’s original religious exemption applied mainly to churches and not to religious nonprofits such as schools. Without court intervention under the federal RFRA, Dordt would have been forced to violate its religious doctrine and pay directly as a self-insured institution for products that violated those beliefs.
In the name of gay rights, Jack Phillips was ordered by the state of Colorado to choose between his religious beliefs, which defined marriage as between one man and one woman, and his livelihood as a small-business owner after he declined to bake a cake a wedding for a same-sex couple. At the time, the Colorado state constitution still prohibited same-sex marriages. The Colorado Civil Rights Commission nevertheless ordered Phillips to change his policies, retrain his staff, and file quarterly reports with the state proving compliance. Unable to do so without violating his religious beliefs, Phillips ceased taking wedding orders, losing about 40% of his business.
In 2018, the U.S. Supreme Court found that the commission, despite its duty of neutrality, had instead acted with hostility toward Phillips’ religious views — in violation not of the RFRA, but the 1st Amendment.
And in the name of transgender rights, a college in Ohio disciplined a longtime philosophy professor for declining to comply with a transgender student’s demands to be addressed by the student’s preferred pronouns. Shawnee State University refused to even consider a request for an accommodation on the basis of religion for Dr. Nicholas Meriwether, a devout Christian who believes that one’s sex is fixed from conception and immutable. During a hearing for a grievance filed by the faculty union on Meriwether's behalf, the university provost “ … made clear that he would not discuss the academic freedom and religious discrimination aspects of the case” and acted in a manner "so hostile that the union representative ‘was not able to present the grievance.’”
Meriwether’s grievance eventually got greenlighted by a federal appeals court. The Sixth Circuit found that Shawnee State did not apply its pronoun policy neutrally and instead exhibited hostility toward Meriwether’s religious beliefs. In lieu of further litigation, the school settled, paying Meriwether $400,000 in attorney fees and punitive damages and rescinding his disciplinary action. He remains on faculty and is no longer bound by policy that violates his beliefs.
All three suffered a violation of their religious rights. But many do not believe their expressions deserve protection for one reason: they find those expressions odious. But that’s why religious freedom laws are necessary in the first place.
Iowa’s RFRA doesn’t create any new avenues for discrimination. It recognizes that our right to free expression deserves protection from more than just federal intrusion. And because of those new protections, Iowans who fear their religious rights are getting trampled now get their day in court — in a venue closer to home.
Comments: 319-398-8266; althea.cole@thegazette.com
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