               IN THE SUPREME COURT OF IOWA
                               No. 13–1877

                           Filed May 22, 2015


JOHN BAKER and VALERIE BAKER,

      Appellants,

vs.

CITY OF IOWA CITY, IOWA and IOWA CITY HUMAN
RIGHTS COMMISSION,

      Appellees.


      Appeal from the Iowa District Court for Johnson County, Paul D.

Miller and Marsha M. Beckelman, Judges.



      Plaintiffs asserting a federal civil rights claim against a city and a

human rights commission appeal a district court grant of summary

judgment in favor of the city and the commission.        The city and the

commission cross-appeal the district court’s decision to allow the

plaintiffs to amend their petition. AFFIRMED.


      Michael J. Pitton of Pitton Law P.C., Iowa City, for appellants.



      Susan M. Dulek, Assistant City Attorney, Iowa City, for appellees.
                                          2

WIGGINS, Justice.
       Employers appeal the district court’s grant of summary judgment
to a city and a human rights commission based on the conclusion that
the city and the commission did not violate the employers’ constitutional
rights when the city and the commission attempted to enforce an
antidiscrimination ordinance.         The city and the commission cross-
appealed the district court’s decision to allow the employers to amend
their petition before the court granted the city and the commission’s
motion for summary judgment.
       The employers allege the city and the commission’s enforcement of
an   antidiscrimination      ordinance,       which   we    previously   held   was
unconstitutional as exceeding the city’s home rule authority, violated
their federal constitutional rights of freedom of association, freedom of
speech, due process, and equal protection.                 Although we previously
found the ordinance as an unconstitutional extension of the city’s home
rule authority under the Iowa Constitution, in this appeal, we find the
ordinance did not violate the employers’ federal constitutional rights.
Thus, the city and the commission are not liable for damages or attorney
fees under 42 U.S.C. § 1983 and § 1988 (2012). We also find the district
court did not abuse its discretion when it allowed the employers to
amend their petition. Therefore, we affirm the district court’s grant of
summary judgment in favor of the city and the commission and we affirm
the court’s grant of the motion to amend in favor of the Bakers.
       I. Background Facts and Proceedings.

       This case is before us for the second time. See Baker v. City of

Iowa City (Baker I), 750 N.W.2d 93 (Iowa 2008). 1 The facts of the case

       1In Baker I, only John Baker appealed. In this case, both John and his spouse
Valerie appealed. In this appeal, we refer to the Bakers, even though Valerie did not
participate in the first appeal.
                                        3

have not changed. The Bakers own property in Iowa City and employ

one or two people to manage the property because the Bakers live out of

state. Id. at 95. In 2003, the current resident managers were moving

out and the Bakers posted a job opening for a new resident manager. Id.

      The Bakers turned down one applicant for the position because

she failed to provide requested references and she indicated her eleven-

year-old son would perform the outside property maintenance required

by the position. Id. The Bakers were concerned for the child’s safety and

worried about violating Iowa’s child labor laws.         Id.   After the Bakers

rejected the woman for the position, she filed a complaint with the Iowa

City Human Rights Commission claiming employment and housing

discrimination. Id.

      The City 2 claimed the Bakers’ rejection of the woman for the

position violated the City’s ordinance making it unlawful for

      any employer to refuse to hire, accept, register, classify,
      upgrade or refer for employment, or to otherwise
      discriminate in employment against any other person or to
      discharge any employee because of age, color, creed,
      disability, gender identity, marital status, national origin,
      race, religion, sex or sexual orientation.

Iowa City, Iowa, City Code § 2-3-1(A).             The ordinance applied to

employers who employ one or more employees. Id. § 2-1-1.

      During the pendency of the civil rights case the Bakers filed a

petition against the City seeking damages under 42 U.S.C. § 1983. The

Bakers claimed the city ordinance was unconstitutional under the home

rule provisions of the Iowa Constitution due to the irreconcilable conflict

between the ordinance and the provisions of the Iowa Code. Baker I, 750


     2For the sake of brevity, we refer to the City of Iowa City and the Iowa City

Human Rights Commission collectively as the City.
                                     4

N.W.2d at 95. The Code provision exempted an employer who regularly

employed fewer than four individuals, while the ordinance did not

contain such an exemption.        Id. at 96. The Bakers also claimed the

enforcement of the ordinance against them violated their federal

constitutional rights of due process and equal protection.      Id. at 98.

Initially, the Bakers’ lawsuit did not include a claim for a violation of

their rights of freedom of association and freedom of speech under the

First Amendment.

      After the Bakers filed their initial petition, they filed a motion to

amend the petition to include claims that the City also violated their

rights of freedom of association and freedom of speech. The Bakers also

filed a motion for summary judgment claiming the ordinance was

unconstitutional on its face. Id. at 96. The City resisted the motion and

filed its own cross-motion for summary judgment. Id. at 96–97.

      During the pendency of the district court proceedings and prior to

the court ruling on the outstanding motions, the Bakers settled the civil

rights proceeding.   Id. at 96.    Thereafter, the district court held the

settlement of the underlying civil rights proceeding rendered all pending

motions moot and did not rule on the Bakers’ motion to amend and

entered summary judgment for the City. Id. at 97.

      The Bakers appealed this ruling.     We reversed the district court

finding the Bakers’ 42 U.S.C. § 1983 claim was not moot. Id. at 98. We

also held the city ordinance prohibiting discrimination by all employers

unconstitutional under the Iowa Constitution because the ordinance

exceeded the City’s home rule authority. Id. at 99–102. We remanded

the case for further proceedings. Id. at 103.

      On remand, the Bakers refiled their motion to amend the petition

to include First Amendment freedom of speech and freedom of
                                       5

association claims.      The City resisted the amendment arguing (1) the

amendment substantially changed the issues before the court and (2) the

Bakers waived their right to add the new issues on remand because they

failed to brief the dismissal of their motion to amend in the initial appeal.

The district court granted the Bakers’ motion to amend.

      The parties again filed cross-motions for summary judgment. The

Bakers argued the City was liable under 42 U.S.C. § 1983 as a matter of

law for attempting to enforce the antidiscrimination ordinance in

violation of the Bakers’ First Amendment rights of freedom of association

and freedom of speech, and their federal constitutional rights of due

process and equal protection.        The district court denied the Bakers’

motion for summary judgment and granted summary judgment in favor

of the City, finding a 42 U.S.C. § 1983 violation did not occur.              The

Bakers appealed the decision finding the City did not violate their

constitutional rights under the Federal Constitution.          The City cross-

appealed the district court ruling allowing the Bakers to amend their

petition to include the First Amendment freedom of speech and freedom

of association claims.

      II. Issues.

      We must first decide if the district court was correct in allowing the

Bakers’ amendment adding First Amendment freedom of speech and

freedom of association claims. Then we must decide whether the City

violated   the   Bakers’   federal   constitutional   rights   of   freedom    of

association, freedom of speech, due process, and equal protection such

that the City is liable for these violations under 42 U.S.C. § 1983 and

liable for attorney’s fees under 42 U.S.C. § 1988.
                                       6

       III. Scope of Review.

       We review a district court’s grant of a motion to amend the parties’

petition for abuse of discretion. Rife v. D.T. Corner, Inc., 641 N.W.2d 761,

766 (Iowa 2002). An abuse of discretion occurs when the district court

bases its decision on grounds clearly untenable or to an extent clearly

unreasonable. Id.

       We review summary judgment rulings for correction of errors at

law.   Baker I, 750 N.W.2d at 97.           The moving party is entitled to

summary judgment if there are no disputed issues of material fact. City

of Fairfield v. Harper Drilling Co., 692 N.W.2d 681, 683 (Iowa 2005). “We

can resolve a matter on summary judgment if the record reveals a

conflict only concerns the legal consequences of undisputed facts.” Id.

     IV. Whether the District Court Was Correct to Allow the
Bakers to Amend Their Petition to Include First Amendment
Freedom of Speech and Freedom of Association Claims.

       We   must    first   address   the   City’s   claim   that   the   Bakers’

constitutional arguments regarding freedom of association and freedom

of speech are not properly before the court. The City claims the district

court erred when it granted the Bakers’ motion to amend their petition
upon remand.       The City also argues the Bakers failed to appeal the

original denial of their motion to amend in the 2008 appeal and

therefore, waived the opportunity to amend thereafter.

       District courts have considerable discretion to allow amendments

at any point in the litigation, and we will only reverse the district court’s

decision if it has abused that discretion. See Bd. of Adjustment v. Ruble,

193 N.W.2d 497, 507 (Iowa 1972).             A district court has the same

discretion to grant a party’s amendment on remand as it did in the initial

proceedings. See Webber v. E.K. Larimer Hardware Co., 234 Iowa 1381,
                                          7

1389, 15 N.W.2d 286, 290 (1944) (“[U]pon the remand of this case . . .

the lower court will have the same discretion to permit plaintiff to amend

his petition as if the case had not been tried. We have so held in a long

line of decisions.”).

      We     have       recognized   in   numerous    cases   that   permitting

amendments should be the rule and denial should be the exception. See

Chao v. City of Waterloo, 346 N.W.2d 822, 825 (Iowa 1984); Ackerman v.

Lauver, 242 N.W.2d 342, 345 (Iowa 1976).             The district court should

allow amendments so long as the amendment does not substantially

change the issues in the case. Rife, 641 N.W.2d at 767. We also permit

amendments that substantially change the issues “if the opposing party

is not prejudiced or unfairly surprised” by the changes. Id. Further, we

permit amendments at any stage of the litigation, and we even permit

amendments to conform to the proof offered at trial. See Allison-Kesley

Ag Ctr., Inc. v. Hildebrand, 485 N.W.2d 841, 846 (Iowa 1992).

      The Bakers moved to amend the initial petition in 2005 with these

exact claims and addressed the claims in their brief to this court in

2008. Additionally, the district court in its 2005 dismissal declined to

rule on the amendment on the incorrect determination that the Bakers’

claims were moot. Our 2008 decision determined the case was not moot

but did not rule on the issue of the amendments, thus we did not

prohibit the Bakers from renewing the motion to amend on remand.

Given this, we find the district court did not abuse its discretion because

the district court’s decision to grant the amendment on remand did not

prejudice or unfairly surprise the City. Therefore, the issues of whether

the City violated the Bakers’ First Amendment rights of freedom of

speech and freedom of association are properly before us.
                                      8

       V. Federal Civil Rights Claim.

       The Bakers brought their action against the City under 42 U.S.C.

§ 1983.    This section of the United States Code allows redress for

individuals “whose constitutional rights were deprived by persons acting

under color of state law.”    Minor v. State, 819 N.W.2d 383, 393 (Iowa

2012). To be successful on a 42 U.S.C. § 1983 claim a plaintiff must

show

       (1) that the defendant deprived the plaintiff of a right secured
       by the constitution and laws of the United States, (2) that
       the defendant acted under color of state law, (3) that the
       conduct was a proximate cause of the plaintiff’s damage, and
       (4) the amount of damages.

Leydens v. City of Des Moines, 484 N.W.2d 594, 596 (Iowa 1992). The

fighting issue between the Bakers and the City is whether the City

violated the Bakers’ federal constitutional rights by enforcing the

ordinance. The district court concluded in its ruling on the City’s motion

for summary judgment that the City’s enforcement of the ordinance that

failed to contain an exemption for small employers from the City’s

employment      discrimination    laws    did   not   violate   the   Bakers’

constitutional rights.

       A. Freedom of Association. The First Amendment embodies the

freedom of association, the right to “enter into and maintain certain

intimate human relationships [without] undue intrusion by the State.”

Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18, 104 S. Ct. 3244, 3249, 82

L. Ed. 2d 462, 471 (1984).

       [T]he constitutional shelter afforded such relationships
       reflects the realization that individuals draw much of their
       emotional enrichment from close ties with others. Protecting
       these relationships from unwarranted state interference
       therefore safeguards the ability independently to define one’s
       identity that is central to any concept of liberty.
                                    9

Id. at 619, 104 S. Ct. at 3250, 82 L. Ed. 2d at 472.       This court has

recognized the notions of freedom of association guided the general

assembly’s policy decision behind the exemption for small employers

found in Iowa Code section 216.6(6)(a) (2003). See Baker I, 750 N.W.2d

at 101–02.   In Baker I, however, we did not hold that the Iowa City

ordinance, which failed to exempt small employers, violated the right of

freedom of association under the Federal Constitution. Rather, we held

the ordinance was unconstitutional under the home rule provision of the

Iowa Constitution. Id. at 99–102.

      Iowa Code section 216.6 exempts employers employing fewer than

four individuals from the state employment discrimination laws, while

the exemption found in federal law exempts employers employing fewer

than fifteen individuals.   Compare 42 U.S.C. §§ 2000e(b), 2000e–2(a)

(2012), with Iowa Code § 216.6(6)(a).       The purpose of the federal

exemption “is to spare very small firms from the potentially crushing

expense of mastering the intricacies of the antidiscrimination laws,

establishing procedures to assure compliance, and defending against

suits when efforts at compliance fail.” Papa v. Katy Indus., Inc., 166 F.3d

937, 940 (7th Cir. 1999); see also Clackamas Gastroenterology Assocs.,

P.C. v. Wells, 538 U.S. 440, 447, 123 S. Ct. 1673, 1678, 155 L. Ed. 2d

615, 624–25 (2003) (“[T]he congressional decision to limit the coverage of

the legislation to firms with 15 or more employees has its own

justification that must be respected—namely, easing entry into the

market and preserving the competitive position of smaller firms.”).

      In Iowa, the general assembly chose to exempt fewer employers.

This policy decision granting exemptions is a reflection of the state’s

determination that the costs to those employers with fewer than four

employees would be prohibitive and reflects the legislative body decision
                                         10

that “notions of freedom of association should preponderate over

concepts of equal opportunity in these situations.”                Arthur Bonfield,

State Civil Rights Statutes: Some Proposals, 49 Iowa L. Rev. 1067, 1109

(1964) [hereinafter Bonfield] (emphasis added).

        The Bakers assert the City’s ordinance as applied to them violated

their freedom of association as a small employer.               While it is true the

ordinance was in direct conflict with the state law, the ordinance as

applied to the Bakers does not rise to the level of violating federal

constitutional rights.      The First Amendment protection of freedom of

association is not absolute and as the Supreme Court recognized in

Roberts, the Constitution does not afford protection to those associations

lacking in the qualities intrinsic to the freedom of association. 468 U.S.

at 619–20, 104 S. Ct. at 3250–51, 82 L. Ed. 2d at 472–73.

        The exemption for small employers exists “because the smallness

of the employer’s staff is usually likely to mean for him a rather close,

intimate, personal, and constant association with his employees.”

Bonfield, 49 Iowa L. Rev. at 1109.               However, the Bakers employ a

resident manager for the property they own in Iowa City because the

Bakers live out of state and are not able to manage the property

remotely.      We      do   not   believe        the   City’s   application    of   its

antidiscrimination ordinance to this primarily nonpersonal relationship

between parties who reside hundreds of miles apart violates the Bakers’

First Amendment right of freedom of association. Mr. Baker attempts to

create a constitutionally protected relationship with his resident manager

because he has close intimate ties with the property, his childhood

home.       However,     the   freedom      of    association    protects     personal

relationships, not sentimental feelings towards one’s property.                     See

Roberts, 468 U.S. at 619–20, 104 S. Ct. at 3250–51, 82 L. Ed. 2d at 472–
                                   11

73.   The Bakers do not have close, intimate, personal, and constant

contact with their employee from across the country.      Therefore, the

City’s ordinance did not deprive the Bakers of their right to freedom of

association.

      B. Commercial Speech. The Bakers next argue the City violated

their First Amendment right to freedom of speech because they feared

additional enforcement of the ordinance by the City if they posted a job

opening for a resident manager and then declined to hire an individual.

In other words, they claim the City’s ordinance directly regulated their

speech.      However, the City did nothing to prevent the Bakers from

posting the job opening for a new resident manager. The City has a right

to prevent discrimination by enacting an antidiscrimination ordinance or

enforcing the state statute.    As long as the Bakers comply with a

constitutional ordinance, such as the state statute, they would not be

subject to future enforcement actions.

      Even if we were to find the Bakers’ argument has some merit, we

reject it.     The Supreme Court has recognized advertisements for

employment are commercial speech.         See Pittsburgh Press Co. v.

Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 385, 93 S. Ct.

2553, 2559, 37 L. Ed. 2d 669, 677 (1973). However, the Constitution

affords commercial speech less protection than other forms of protected

speech. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,

447 U.S. 557, 562–63, 100 S. Ct. 2343, 2350, 65 L. Ed. 2d 341, 348–49

(1980). If the state forces a person to modify his or her speech to avoid

prosecution, the law in question may violate the person’s First

Amendment rights. See St. Paul Area Chamber of Commerce v. Gaertner,

439 F.3d 481, 487 (8th Cir. 2006). An individual can establish injury by

proving he or she would have engaged in protected speech but that the
                                    12

existence of the statute prevented it. 281 Care Comm. v. Arneson, 638

F.3d 621, 627 (8th Cir. 2011).

      The City was in the process of enforcing the ordinance when the

Bakers filed this claim. Thus, it was reasonable for the Bakers to believe

if they discriminated against another applicant, the City would again

enforce the ordinance, as the ordinance did not contain an exemption for

small employers. Therefore, the Bakers have standing to challenge the

ordinance on First Amendment grounds. See Virginia v. Am. Booksellers

Ass’n, Inc., 484 U.S. 383, 392–93, 108 S. Ct. 636, 642–43, 98 L. Ed. 2d

782, 793–94 (1988).

      The Supreme Court in Central Hudson lays out a four-part test to

determine if a state action deprives the right to commercial speech.

      [W]e must determine whether the expression is protected by
      the First Amendment. For commercial speech to come
      within that provision, it at least must concern lawful activity
      and not be misleading. Next, we ask whether the asserted
      governmental interest is substantial. If both inquiries yield
      positive answers, we must determine whether the regulation
      directly advances the governmental interest asserted, and
      whether it is not more extensive than is necessary to serve
      that interest.

Cent. Hudson Gas & Elec. Corp., 447 U.S. at 566, 100 S. Ct. at 2351, 65

L. Ed. 2d at 351.

      We agree with the Bakers that the speech in question concerns the

posting of a job opening, a lawful and nonmisleading communication.

Thus, the Bakers’ job posting is a type of protected speech. See id.

      Next, we must determine if the City’s interest is substantial. Id.

As one author noted, “Antidiscrimination law is the primary means by

which organized society protects individuals against disadvantageous

treatment on the basis of their membership in certain groups,

archetypally racial or ethnic minority groups.”    Peter J. Rubin, Equal
                                     13

Rights, Special Rights, and the Nature of Antidiscrimination Law, 97 Mich.

L. Rev. 564, 568 (1998). We find the City has a substantial interest in

ensuring all its citizens receive equal treatment in the area of

employment.

      Finally, we must determine if the ordinance advances the City’s

goal of ending discrimination, and if so, whether it is more extensive than

necessary. Cent. Hudson, 447 U.S. at 566, 100 S. Ct. at 2351, 65 L. Ed.

2d at 351. The City did not place requirements on employers regarding

who they must hire or attempt to dictate how the employer must run his

or her business. The City was only telling its employers that if they were

going to hire a person for a position, the employer could not discriminate

based on age, color, creed, disability, gender identity, marital status,

national origin, race, religion, sex, or sexual orientation. The employer

still has the prerogative of employing the best person qualified for the

position as long as his or her employment decision does not discriminate

based on the age, color, creed, disability, gender identity, marital status,

national origin, race, religion, sex, or sexual orientation of the employee.

For this reason, we find the ordinance was not more extensive than

necessary to serve the interest of prohibiting discrimination.

      Therefore, when we apply the Central Hudson test to the City’s

ordinance, we find it did not deprive the Bakers of their exercise of

commercial speech.

      C.   Due Process.    The Bakers also argue the City violated their

procedural and substantive due process rights under the United States

Constitution.

      1.   Procedural due process.    The Constitution provides no state

shall “deprive any person of life, liberty, or property, without due process

of law.” U.S. Const. amend. XIV, § 1. In deciding what process is due a
                                     14

party, we balance three competing interests. Mathews v. Eldridge, 424

U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976).              The

Supreme Court has stated these interests are:

      First, the private interest that will be affected by the official
      action; second, the risk of an erroneous deprivation of such
      interest through the procedures used, and the probable
      value, if any, of additional or substitute procedural
      safeguards; and finally, the Government’s interest, including
      the function involved and the fiscal and administrative
      burdens that the additional or substitute procedural
      requirements would entail.

Id. We have previously said even though an alternative procedure may be
wiser or fairer, the procedure the government entity provides does not

necessarily violate due process. Ghost Player, L.L.C. v. State, 860 N.W.2d

323, 330 (Iowa 2015).

      The private interest affected by the enforcement of the ordinance

through the administrative hearing gives the Bakers substantial due

process throughout the proceedings.          The City first engaged in an
impartial probable cause hearing prior to bringing the action against the

Bakers.   After finding probable cause, the Bakers were entitled to a

hearing in which the City would have to prove a violation of the

ordinance.    At that hearing, the Bakers could have raised their

constitutional arguments. If the ordinance was unconstitutional and the

City attempted to enforce it after the administrative hearing, the Bakers

had a meaningful right of appeal to contest the administrative findings.

See   Iowa   Code   §   17A.19(10)(a)     (acknowledging   a   party   to   an

administrative proceeding can raise the constitutionality of an agency

action or rule). The probable cause hearing, followed by a hearing on the

merits and a meaningful right of appeal process, satisfies the Bakers’

procedural due process rights.
                                               15

         The Bakers chose not to let the administrative proceedings play

out, but instead chose to shortcut the administrative process set up by

our legislature and file their 42 U.S.C. § 1983 claim. Just because the

Bakers     chose   to    file    their    42    U.S.C.   § 1983    claim     before   the

administrative proceedings concluded, does not mean the Bakers’

procedural due process rights were violated.

         2. Substantive due process. The Bakers next argue that the City’s

enforcement of the ordinance violated their substantive due process

rights of association and free speech under the First Amendment. We

have already determined in this opinion that the City’s enforcement of

the ordinance did not violate the Bakers’ rights of association and free

speech under the First Amendment. Thus, the right to hire a person in

violation of the City’s antidiscrimination ordinance is not a fundamental

right.

         Because   the     rights        implicated   are    not   fundamental,       the

appropriate level of scrutiny to apply to the City’s ordinance is rational

basis. See Vance v. Bradley, 440 U.S. 93, 97, 99 S. Ct. 939, 942–43, 59

L. Ed. 2d 171, 176 (1979). Under the rational basis test, the ordinance

is valid so long as “it is rationally related to furthering a legitimate state

interest.”    Id. at 97, 99 S. Ct. at 943, 59 L. Ed. 2d at 176 (internal

quotation marks omitted).

         The City’s purpose in enacting the ordinance was to prevent

employment discrimination in the city. The City has a legitimate interest

in attempting to eradicate discrimination in employment so that its

citizens do not receive disadvantageous treatment because of their

identification within certain groups.                 The City’s antidiscrimination

ordinance      furthered        the   City’s    legitimate   interest   to     eradicate
                                            16

employment discrimination in Iowa City. Thus, the enforcement of the

ordinance did not violate the Bakers’ due process rights.

       D. Equal Protection. Lastly, the Bakers argue the City violated

their equal protection rights under the United States Constitution

because the ordinance includes an exemption for religious institutions,3

employers hiring persons to work within the employers’ home, 4 and

employers hiring persons to perform personal services, 5 but did not

include an exemption for small employers in the ordinance.

       The Federal Equal Protection Clause provides no state may “deny

to any person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1.

       The first step in determining whether a statute violates equal

protection is to determine whether the statute creates different

classifications between similarly situated persons. See City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 439–40, 105 S. Ct. 3249, 3254, 87

L. Ed. 2d 313, 320 (1985).            For the purposes of this appeal, we will

assume the Bakers are similarly situated to other small employers in the

       3TheIowa City ordinance provides an exemption from the ordinance to an
employer who meets the following:
       Any bona fide religious institution or its educational facility, association,
       corporation or society with respect to any qualifications for employment
       based on religion when such qualifications are related to a bona fide
       religious purpose. A religious qualification for instructional personnel or
       an administrative officer, serving in a supervisory capacity of a bona fide
       religious educational facility or religious institution shall be presumed to
       be a bona fide occupational qualification.
Iowa City, Iowa, City Code § 2-3-1(F)(1).
       4The Iowa City ordinance provides an exemption from the ordinance for “[t]he
employment of individuals for work within the home of the employer if the employer or
members of the family reside therein during such employment.” Id. § 2-3-1(F)(3).
       5The Iowa City ordinance provides an exemption from the ordinance for “[t]he
employment of individuals to render personal service to the person of the employer or
members of the employer’s family.” Id. § 2-3-1(F)(4).
                                        17

City who receive an exemption under the ordinance. See LSCP, LLLP v.

Kay-Decker, 861 N.W.2d 846, 860 (Iowa 2015) (assuming without

deciding the two proffered groups were similarly situated for the

purposes of an equal protection claim).

      If the statute treats similarly situated persons differently, we must

then determine what level of scrutiny is required. See, e.g., Plyler v. Doe,

457 U.S. 202, 216, 102 S. Ct. 2382, 2394, 72 L. Ed. 2d 786, 799 (1982)

(“[W]e would not be faithful to our obligations under the Fourteenth

Amendment      if   we   applied   so   deferential   a   standard   to   every

classification.”). Therefore, it is necessary to determine the appropriate

level of scrutiny to apply to the ordinance.

      The Supreme Court has stated that

      [u]nless a classification trammels fundamental personal
      rights or is drawn upon inherently suspect distinctions such
      as race, religion, or alienage, our decisions presume the
      constitutionality of the statutory discriminations and require
      only that the classification challenged be rationally related to
      a legitimate state interest.

City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 2516–

17, 49 L. Ed. 2d 511, 517 (1976) (per curiam).

      In their brief, the Bakers argue the ordinance infringes on their

fundamental right to freedom of association under the First Amendment,

and we should apply a strict scrutiny analysis.            However, we have

previously decided in this opinion the ordinance does not infringe on

their fundamental right to freedom of association.         Thus, we will not

apply strict scrutiny.    Therefore, rational basis review applies to the

Bakers’ federal equal protection claim.

      The United States Supreme Court explained the federal rational

basis test as follows:
                                     18
             We many times have said, and but weeks ago
      repeated, that rational-basis review in equal protection
      analysis “is not a license for courts to judge the wisdom,
      fairness, or logic of legislative choices.” Nor does it authorize
      “the judiciary [to] sit as a superlegislature to judge the
      wisdom or desirability of legislative policy determinations
      made in areas that neither affect fundamental rights nor
      proceed along suspect lines.”            For these reasons, a
      classification neither involving fundamental rights nor
      proceeding along suspect lines is accorded a strong
      presumption of validity. Such a classification cannot run
      afoul of the Equal Protection Clause if there is a rational
      relationship between the disparity of treatment and some
      legitimate governmental purpose. Further, a legislature that
      creates these categories need not “actually articulate at any
      time the purpose or rationale supporting its classification.”
      Instead, a classification “must be upheld against equal
      protection challenge if there is any reasonably conceivable
      state of facts that could provide a rational basis for the
      classification.”

             A State, moreover, has no obligation to produce
      evidence to sustain the rationality of a statutory
      classification. “[A] legislative choice is not subject to
      courtroom factfinding and may be based on rational
      speculation unsupported by evidence or empirical data A
      statute is presumed constitutional and “[t]he burden is on
      the one attacking the legislative arrangement to negative
      every conceivable basis which might support it,” whether or
      not the basis has a foundation in the record. Finally, courts
      are compelled under rational-basis review to accept a
      legislature’s generalizations even when there is an imperfect
      fit between means and ends. A classification does not fail
      rational-basis review because it “ ‘is not made with
      mathematical nicety or because in practice it results in some
      inequality.’ ” “The problems of government are practical
      ones and may justify, if they do not require, rough
      accommodations—illogical, it may be, and unscientific.”

Heller v. Doe by Doe, 509 U.S. 312, 319–21, 113 S. Ct. 2637, 2642–43,

125 L. Ed. 2d 257, 270–71 (1993) (citations omitted).

      The   ordinance    had   the   legitimate   government     interest   of

eliminating discrimination against the citizens of Iowa City.       The City

also had a legitimate interest in exempting certain employers from the

ordinance. The purpose of the religious exemption was for the City to

promote the free exercise of religion by “bona fide religious organizations”
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so that those organizations would locate in the city and provide religious

services to its citizens. As to the exemptions regarding persons working

within the employers’ home, and employees hired to perform personal

services, the City’s interest was to provide these employers greater

latitude in hiring because of the close personal relationships and greater

security risks these employees pose to the employer.

      Although the Bakers may disagree with the City’s interest in

providing certain exceptions, the rational basis test allows a City to

legislate based on their concerns. The Bakers had the burden to negate

every conceivable basis that may support the ordinance.         They have

failed to do so. Thus, the classifications included in the ordinance do not

violate the Equal Protection Clause of the United States Constitution.

      E.   Attorney’s Fees.    In addition to claiming the City is liable

under 42 U.S.C. § 1983, the Bakers are also seeking attorney’s fees

under 42 U.S.C. § 1988 because of the claimed federal constitutional

violations. Under 42 U.S.C. § 1988, the court may award attorney’s fees

to a prevailing party in a 42 U.S.C. § 1983 action. 42 U.S.C. § 1988(b).

However, “a plaintiff who loses on the merits of his federal claims is not a

‘prevailing party’ for § 1988 purposes, just because he prevails on a

related pendent state-law claim.” Skokos v. Rhoades, 440 F.3d 957, 962

(8th Cir. 2006).   Here, the Bakers were successful in invalidating the

City’s ordinance under the home rule provision of the Iowa Constitution.

The Bakers have not shown the City violated any of their rights under

the Federal Constitution.   As they were not successful on any of their

federal claims, the Bakers are not a prevailing party for the purposes of a

42 U.S.C. § 1988 claim for attorney’s fees.
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      VI. Conclusion and Disposition.

      We find the district court did not abuse its discretion when it

allowed the plaintiffs to amend their petition. We also find the City did

not violate the Bakers’ constitutional rights, and therefore, the City is not

subject to liability under 42 U.S.C. § 1983 or liable for attorney’s fees

under 42 U.S.C. § 1988. Accordingly, we affirm the district court’s grant

of summary judgment.

      AFFIRMED.
