By Alan Ostergren

Freedom movement scores important legal victories

Labels are useful for describing a person’s political views, but only to a point. People who define themselves, for instance, as Conservatives, Republicans, or even Patriots, do not agree on every issue. But one issue unites political observers of all stripes: the importance of the courts. In the last few months, the freedom movement has witnessed several important decisions that will have lasting effects. Here are a few examples:

Brnovich v. DNC: Arizona’s ban on ballot harvesting and other election integrity provisions are deemed constitutional.    

The U.S. Supreme Court handed down this case on the last day of its term. The Court sharply limited the ability to challenge neutral voting regulations under Section 2 of the Voting Rights Act. Democrats challenged two Arizona rules: one that required voters to cast their ballot in the correct precinct and one that limited ballot harvesting (the rules about who, other than an election official, can be in possession of a voter’s completed ballot). The high Court recognized that Arizona made it easy to vote and that the claimed racial discrepancies caused by the rules were small or nonexistent and did not require the Court to strike down these rules.

This case will have real effects going forward. Democrat-aligned groups have filed lawsuits against states challenging all sorts of neutral and common-sense election rules and policies. These cases claim that these rules are “voter suppression.” The Court’s decision in Brnovich will make it much more difficult for these claims to move forward.

Fulton v. City of Philadelphia:  Court takes a step to secure religious freedom rights, but still much more work to be done.

The high Court ruled 9-0 that a Philadelphia policy of excluding a Catholic social services agency from participation in a foster care parent program unconstitutionally discriminated against it in violation of the First Amendment. The agency had a policy of not placing children with same-sex couples or unmarried opposite-sex couples. This violated a city policy for participation in the program. (No same-sex couple had ever approached the Catholic agency to be foster parents and the agency director testified that such a couple would simply be referred to another foster parent agency.) The Court’s ruling was an important, if limited, victory for religious freedom. The Court could have, but did not, overrule a case called Employment Division v. Smith, on whether persons can claim a religious exemption from a facially neutral policy. Smith remains good law for now, but three Justices expressed serious concerns about the case’s reasoning. Two other Justices expressed doubts about Smith but wrote that it was not clear what test should replace it and that this case was not a good vehicle to decide the issue.

Cedar Point Nursery v. Hassid:  More progress in the battle to secure private property rights.

The Supreme Court scored an important victory for property rights. At issue was a California regulation that required physical access by labor unions to the property of agricultural employers. The employers claimed the regulation unconstitutionally took their property rights without paying compensation. The Court agreed. It distinguished other cases where regulations have a minor impact on the use of property or are reasonably related as a condition of receiving a governmental permit or license. The case follows a decision last term that expands when a property owner can raise a takings claim in court when local government attempts to condemn property. The Court is clearly moving in the direction of giving greater protection to private property rights.

Intervarsity Christian Fellowship/USA v. University of Iowa:  Circuit Court protects Christian student group from unconstitutional faith-based discrimination.

The U.S. Court of Appeals for the Eighth Circuit denied qualified immunity to several University of Iowa officials who discriminated against a Christian group when they attempted to force the group to accept non-Christians to leadership positions or face disqualification as a recognized student group on campus. The court ruled that it was clearly established law that the First Amendment did not permit the university to enforce an antidiscrimination policy when the policy would frustrate the very purpose of the group’s existence. The court also noted that the university had tolerated violations by other groups, such as an all-women singing group. The case will return to the district court to determine the damages that the university will have to pay.

Planned Parenthood v. Reynolds: Legislature has the right to exclude abortion providers from federal family planning program dollars.

When the Iowa legislature enacted an appropriations rider that prevented Planned Parenthood from receiving grant funding to teach sexual education to children, the group sued to block enforcement of the prohibition. The district court granted an injunction and the state appealed. The Iowa Supreme Court ruled that the legislature could validly express its policy views and exclude Planned Parenthood from participation. The court specifically found that Planned Parenthood itself did not have a right to perform abortions. The decision is an important, if limited, follow on to the court’s decision in 2018 that found a right to obtain an abortion under the Iowa Constitution. There is a case coming up before the court in its coming term that asks the court to reconsider the 2018 decision. Because there are four new justices on the court since 2018 and the two dissenting Justices from the 2018 decision are still serving, there is room for optimism that the court will revisit this question. The current state of the law puts Iowa far outside the mainstream of states. (Full disclosure: in my private law practice I represented a group that filed an amicus brief in this case supporting the state.)

Godfrey v. Branstad: Decade-long political witch-hunt against former Governor Branstad is finally over.  

The Iowa Supreme Court finally put an end to a lawsuit filed by the former workers’ compensation commissioner who claimed that Iowa Governor Terry Branstad discriminated against him on the basis of sexual orientation. Gov. Branstad demanded Godfrey’s resignation when he came into office in 2011. Godfrey, who had a six-year term as commissioner, refused to resign. Gov. Branstad then reduced his salary to the lowest in the range permitted under state law (Godfrey had been at the top of the range). Godfrey claimed the decision was motivated by discrimination, Gov. Branstad denied knowing Godfrey’s sexual orientation until being sued by him.

This case had been before the Iowa Supreme Court on two separate earlier appeals. The court decided for the first time that a plaintiff could raise a cause of action under the Iowa Constitution when there was no corresponding violation in the Iowa Civil Rights Act. When the case was finally tried, the district court allowed Godfrey to prove his claim by showing general anti-gay bias on the part of all Iowa Republicans. Godfrey had no direct proof that Branstad knew Godfrey’s sexual orientation.

The court held it was error to admit much of Godfrey’s evidence and there was no proof of his claim. The court also held that Godfrey could not prove he had an entitlement to any particular salary within the range provided by law. The court ordered the case dismissed.

The case is an important victory for conservatives, but not because a former Republican Governor won. If the verdict had been permitted to stand it would have sharply limited the ability of any Governor to carry out the wishes of the voters. This was a political fight that should have never been in the courts. If the voters didn’t like Gov. Branstad’s decision, they had every opportunity to vote him out of office.

DCCC v. Pate and LULAC v. Pate. County Auditors are not allowed to ignore Iowa’s election integrity laws. 

These were two voting cases that came before the Iowa Supreme Court just before the 2020 election. The court was asked to block enforcement of a directive of the Secretary of State that prohibited county auditors from sending out prepopulated absentee ballot request forms. Three county auditors had violated the directive but were ordered to not act on the forms and send out ballots by district court judges. The court did not intervene and left the secretary’s directive in place.

It should be noted that the predictions of electoral chaos by Democratically-aligned groups did not come to pass. Despite telling the courts that the secretary’s order would suppress votes, there were no reported issues with absentee voting in the 2020 general election. (Full disclosure, in my private capacity I represented Republican-aligned groups in this litigation).

These cases are just a sample of what has happened in court recently. To be clear: conservatives are not happy with every decision that courts hand down. But these cases show why elections matter and it is important to remain focused on the courts.

Alan Ostergren is a Contributing Scholar to TEF Iowa.  Ostergren is President of Kirkwood Institute, a non-profit, strategic litigation law firm in West Des Moines, Iowa, as well as an attorney in private practice.  Ostergren served as Assistant Muscatine County Attorney from 1997 to 2011. Starting in 1999, he also worked as Special Assistant U.S. Attorney for three years, primarily handling federal drug, firearm, and immigration cases out of Muscatine County. Ostergren was elected to be Muscatine County Attorney and took office in January 2011. He served as County Attorney for nearly ten years before leaving office to found Kirkwood Institute.