"Conscience" Exemption the Victim of Illegal "Legal Opinion"
By Dave Leach
An illegal "legal opinion" by the Des Moines City Legal Department was the reason, given orally by City Councilmen, for withdrawing their support for a faith-based exception to the controversial homosexual rights ordinance enacted July 9, 2001.
The exception would create a mechanism through which employers and landlords with bona fide religious reasons for not hiring, or renting to, homosexuals, could apply for an exemption through the Human Rights Commission.
The legal opinion, written by Assistant City Attorney Emily Gould Chafa, not only fails to answer any of the legal questions before it, but it violates state law by classifying itself as "confidential", preventing its release to the public.
Iowa Code Chapter 22 is Iowa's version of the federal Freedom of Information Act. It requires cities to make available, for public inspection, "all records...belonging to...any...city...." [22.1(3)]
The principle courts are required to consider, in enforcing this law, is that "free and open examination of public records is generally in the public interest even though such examination may cause inconvenience or embarrassment to public officials or others." [22.8(3)]
22.7(4) makes an exception for attorney "work product" only if it is "related to litigation or claim made by or against a public body." There is no court case related to Mrs. Gould-Chafa's legal opinion, so her work does not fall under this exception. Therefore, her work is a "public record", and her refusal to make it public makes her guilty of a Simple Misdemeanor (up to 30 days in jail and $100 fine plus court costs) according to Iowa Code 22.6.
Gould-Chafa titles her report "Confidential Attorney Client Communication". Indeed, were she a private attorney whose client was a private citizen, then her report would be "privileged" from release even to a court. But when she is a tax-paid attorney with the Des Moines City Legal Department, and her "client" is a Des Moines City Councilman who requested the opinion to help him determine how he should vote, on an amendment to perhaps the most controversial ordinance to come before the Council in a decade, then her claim of attorney-client privilege not only undermines public faith in the integrity of the City Council, but is a violation of state law.
Gould-Chafa authored at least two reports: the first on July 2, 2001, and the second the day of the final vote on the homosexual ordinance, July 9. An inquiry to the City Legal Department for a copy of the communication elicited an email response that the communication could not be released because it was "confidential". (See appendix.)
Analysis of the Opinion. A copy of the July 9 opinion, obtained from a confidential source, offers the presumptuous conclusion that "it is not necessary to add such an exception to comply with the applicable constitutional standards since the proposed amendment already strikes an appropriate balance between the City's legitimate governmental interest in protecting its citizens from discrimination and the First Amendment's Free Exercise Clause."
What makes this conclusion presumptuous is that the balance between our Freedom of Religion, and the City's legitimate purposes, reached by the homosexual rights ordinance, has not been thoroughly tested in court. There is legitimate controversy whether the ordinance achieves any acceptable balance. For her to state that this ordinance will win the balancing test, before the starting gun has even fired that sends the ordinance down its judicial track, is presumptuous. The plain fact is, she does not know whether the proposed "Conscientious Objector" exemption will prove "necessary".
Without her July 2 opinion before us, we can't know for sure if she was really asked whether the "conscience" amendment were "necessary". But surely she was only asked whether it had legal merit; whether it would stand up in court. For her to shift the question from "workability" or "desirability" to one of "necessity" is like a child asking if he might have a cookie, and the mother answers condescendingly, "Is that really necessary?" The child is under pressure to answer "of course it isn't necessary. But it would certainly be desirable." Gould-Chafa, however, declined to address the amendment's workability, legal soundness, or desirability.
The July 9 opinion is her answer to Councilmember McPherson's complaint about the vagueness of her July 2 opinion. In her July 9 "clarification", she uses the well-worn legal ruse of restating the question, and then concluding "I hope that this information adequately responds to the question. As always, please feel free to contact me with any further questions or comments relating to these issues."
If the July 9 opinion is an indication, McPherson's question was not even relevant to the "Conscience" amendment, which creates an exemption for individual landlords and employers, in addition to the exemption for churches in the original homosexual rights ordinance.
McPherson's question, according to Gould-Chafa, was about the exemption for churches. Gould-Chafa had said the ordinance "allows religious institutions an exemption from the requirements of the ordinance if certain criteria is established." McPherson had "apparently" asked what "certain criteria" means.
That is a question in which many churches have an interest. The Ordinance exempts "bona fide religious organizations" in their hiring for positions with a "bona fide religious purpose". The ordinance offers no further definition than that. So what does that mean? That a green-haired, body-pierced, rainbow-ribbon-bedecked applicant for custodian must be hired by any church? Does cleaning have a "bona fide religious purpose"? How about a cook, or a day care worker, or a position with mixed responsibilities from pastor to janitor? Who can answer such questions before they go to court and face the flip of a judicial coin?
But listen to Gould-Chafa's "answer" consisting of a wordy restatement of the question: "The ordinance, with its amendment, allows certain exemptions for bona fide religious institutions in the areas of employment, housing, and public accommodations when the following facts are true: (1) a bona fide religious institution (2) has qualifications for employment, or imposes qualifications for housing or public accommodations based on religion or sexual orientation and (3) such qualifications are related to a bona fide religious purpose. The criteria to be established in each case would be (1) whether or not the entity in question is a bona fide religious institution; (2) whether or not the institution has or imposes qualifications for employment, housing or public accommodations based on religion or sexual orientation; and (3) whether those qualifications are related to a bona fide religious purpose.... I hope that this information adequately responds to the question."
Next she tries to label anyone who is concerned as paranoid, for worrying about a law which has been on the books for years and has never caused any problems. She says, "These exemptions for religious institutions that satisfy the criteria listed above based on religion when those qualifications are related to a bona fide religious purpose have been a part of the Des Moines Human Rights Ordinance for many years."
Well, of course they posed no problem before, because no church had a theological aversion to hiring a janitor who went to another church. But now that same law adds homosexuals to the people churches must hire for non-ministerial jobs! Many churches have a theological aversion to hiring unrepentant, publicly proud sinners! Problems are now being caused!
Mrs. Gould-Chaffee is the same attorney who prosecuted me about 10 years ago in an Operation Rescue case. Her briefs then, too, struck me as proceeding from a state of oblivion. I assumed then it wasn't that she was that ignorant, but that she knew the judge would only read her brief, not mine, and by not addressing the issues I had raised, the judge would be less likely to learn of their existence. I assume that remains her strategy to this day.
----- Original Message -----
From: Noah, Connie R. <CRNoah@ci.des-moines.ia.us>
Sent: Wednesday, July 25, 2001 4:49 PM
I just spoke with Emily Chafa and the communication you are talking
about was a Confidential Attorney/Client Communication which is not public
City Legal Department
Got feedback? Send it, along with
name or url of the article, and a little of the text on either side of where
your comment belongs, so I know what you are responding to, and I'll post
your response. I might even place it right smack dab in the article! (If
you don't want your email posted, SAY SO!)