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Is Your Church Breaking Public Accommodations Laws?

To answer this question, churches must be well-versed in federal, state, and local laws.

Is Your Church Breaking Public Accommodations Laws?

The potential effect of public accommodations laws on churches is detailed in Hitching Post Weddings v. City of Coeur d'Alene, 172 F.Supp.3d 1118 (D. Idaho 2016). In this case, a married couple (the "plaintiffs") are Christians and ordained ministers. In 1989, they purchased a marriage chapel (the "Hitching Post") in Coeur d'Alene, Idaho, which they operated as a for-profit corporation. In 2014, they executed the "Operating Agreement of Hitching Post Weddings, LLC," which states, in part:

The Hitching Post is a religious corporation owned solely by ordained ministers of the Christian religion who operate this entity as an extension of their sincerely held religious beliefs and in accordance with their vows taken as Christian ministers. The purpose of the Hitching Post is to help people create, celebrate, and build lifetime, monogamous, one-man-one-woman marriages as defined by the Holy Bible… .
The Hitching Post provides wedding and marriage-related services for the purpose of publicly expressing and promoting that marriage is the union of one man and one woman, which is consistent with the owners' sincerely held religious beliefs and with their ministerial vows. Any request for wedding and marriage-related services not within this identified purpose is outside the scope of services offered by the Hitching Post.
The Hitching Post, consistent with its owners' sincerely held religious beliefs, provides wedding and marriage-related services also for the purposes of promoting the social institution of marriage as a fundamental building block of our society and promoting the public understanding of marriage as the union of one man and one woman. By furthering these purposes, the Hitching Post endeavors to instill and promote this biblical understanding of marriage and marriage-related values in the communities where it operates. Achieving these goals is important to ensure that marriage remains a vital social institution that uniquely promotes the raising of children by their mother and father.

At the same time, the plaintiffs created new employee and customer policies, identifying the Hitching Post as a "religious corporation" with a "religious purpose."

The plaintiffs contended that the Hitching Post was a "public accommodation" under the Ordinance.

For as long as the plaintiffs have owned the Hitching Post, the business has never allowed its ministers to officiate same-sex weddings or commitment ceremonies because doing so would violate the plaintiffs' religious beliefs. Since 1989, the plaintiffs have refused to perform same-sex wedding ceremonies at least 15 times.

In 2013, the city of Coeur d'Alene passed Ordinance § 9.56, which makes it a misdemeanor crime "to deny to or to discriminate against any person because of sexual orientation and/or gender identity/expression the full enjoyment of any of the accommodations, advantages, facilities or privileges of any place of public resort, accommodation, assemblage, or amusement." The Ordinance defines "place of public resort, accommodation, assemblage, or amusement" as follows:

A place of public resort, accommodation, assemblage, or amusement includes, but is not limited to, any public place, licensed or unlicensed, kept for gain, hire or reward, or where charges are made for admission, service, occupancy or use of any property or facilities, whether conducted for the entertainment, housing or lodging of transient guests, or for the benefit, use or accommodation of those seeking health, recreation or rest, or for the sale of goods and merchandise, or for the rendering of personal services, or for public conveyance or transportation on land, water or in the air, including the stations and terminals thereof and the garaging of vehicles, or where food or beverages of any kind are sold for consumption on the premises, or where public amusement, entertainment, sports or recreation of any kind is offered with or without charge, or where medical service or care is made available, or where the public gathers, congregates, or assembles for amusement, recreation or public purposes, or public halls, public elevators and public washrooms of buildings and structures occupied by two (2) or more tenants, or by the owner and one or more tenants, or any public library or any educational institution wholly or partially supported by public funds, or schools of special instruction, or nursery schools, or daycare centers or children's camps; nothing herein contained shall be construed to include, or apply to, any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, provided that where public use is permitted that use shall be covered by this section; nor shall anything herein contained apply to any educational facility operated or maintained by a bona fide religious or sectarian institution.

The plaintiffs contended that the Hitching Post was a "public accommodation" under the Ordinance.

The Ordinance also contains certain "exceptions," exempting particular entities from its prohibition on sexual orientation discrimination. One exception pertains to "religious corporations, associations, educational institutions, or societies." The Ordinance does not define what constitutes "religious corporations, associations, educational institutions, or societies."

Meanwhile, on May 13, 2014, a US Magistrate Judge ruled that the marriage laws of the State of Idaho were unconstitutional to the extent that they prohibited same-sex marriage. The judge explained, "Idaho's Marriage Laws deny its gay and lesbian citizens the fundamental right to marry and relegate their families to a stigmatized, second-class status without sufficient reason for doing so." A few months later, the Ninth Circuit US Court of Appeals affirmed the judge's ruling:

Idaho's … marriage laws, by preventing same-sex couples from marrying and refusing to recognize same-sex marriages celebrated elsewhere, impose profound legal, financial, social and psychic harms on numerous citizens of those states. These harms are not inflicted on opposite-sex couples, who may, if they wish, enjoy the rights and assume the responsibilities of marriage. Laws that treat people differently based on sexual orientation are unconstitutional unless a "legitimate purpose … overcomes" the injury inflicted by the law on lesbians and gays and their families … . Because defendants have failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.

On June 26, 2015, the United States Supreme Court ruled that the Constitution requires a state to license a marriage between same-sex couples and to recognize a same-sex marriage lawfully licensed and performed out-of-state. Obergefell v. Hodges, 135 S.Ct. 2584 (2015). In doing so, Justice Kennedy, writing for the majority, concluded:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

In response to the precedent set in Idaho, the plaintiffs closed the Hitching Post on October 8, 2014, claiming that they had been informed by the City that they would be in violation of the nondiscrimination provisions in the public accommodations Ordinance. For these same reasons, the plaintiffs kept the Hitching Post closed on October 9, 10, 11, 14, and 15, 2014, as well. The plaintiffs claimed they lost clients on the days they were closed, and therefore lost income.

Article III of the Constitution confines the work of a federal court to actual "cases" or "controversies." To satisfy it, a plaintiff must have 'standing' to bring the complaint.

On October 16, 2014, the plaintiffs reopened the Hitching Post, but declined requests to perform any same-sex wedding ceremonies due to their sincerely held religious convictions and ministerial vows. The plaintiffs and the Hitching Post continue to decline requests to perform same-sex wedding and commitment ceremonies.

On October 17, 2014, the plaintiffs filed a lawsuit alleging that (1) the City repeatedly informed them that the Ordinance applies to the Hitching Post, and (2) they had consistently declined to perform same-sex wedding ceremonies. The City did not enforce the Ordinance against the plaintiffs or the Hitching Post. Still, the plaintiffs claimed to be in a "constant state of fear" that they may one day have to go to jail or pay substantial fines if they or the Hitching Post was determined to have violated the Ordinance.

On October 20, 2014, the Coeur d'Alene city attorney sent a letter to the plaintiffs' counsel, addressing the allegations made in the plaintiffs' lawsuit. The letter states, in relevant part:

I am the city attorney for the City of Coeur d'Alene, Idaho. As we discussed today by telephone I have reviewed the 63 page complaint and the attached exhibits filed by your clients in their lawsuit against the City. While I appreciate your clients' concerns, it appears from the documents filed in their lawsuit that they are claiming to be operating a "religious corporation." If they are truly operating a not-for-profit religious corporation they would be specifically exempted from the City's anti-discrimination ordinance.
My office has responded to questions from your clients in the past and told them that, based on the facts presented and their corporate status at the time, they would likely be governed by the anti-discrimination ordinance if a complaint was made against them. Their lawsuit was something of a surprise because we have had cordial conversations with them in the past and they have never disclosed that they have recently become a religious corporation. However it now appears that on or about October 6, 2014, they filed with the Idaho Secretary of State as a religious corporation. These are new facts. If they are operating as a legitimate not-for-profit religious corporation then they are exempt from the ordinance like any other church or religious association. On the other hand, if they are providing services primarily or substantially for profit and they discriminate in providing those services based on sexual orientation then they would likely be in violation of the ordinance.
I want to be clear that absent a change in the City's anti-discrimination ordinance or other applicable state or federal law, the City will not prosecute legitimate, nonprofit religious corporations, associations, educational institutions, or societies or other exempt organizations or anyone else as a result of their lawful exercise of their first amendment rights of freedom of speech and religion. In addition to specifically exempting religious corporations, associations, educational institutions, and societies, section 9.56.040 of the anti-discrimination ordinance states that the ordinance "shall be construed and applied in a manner consistent with first amendment jurisprudence regarding the freedom of speech and exercise of religion."
I believe that given the current facts your clients' lawsuit is premature and not ripe for adjudication. As such, I would ask that you review this letter with your clients and urge them to dismiss their lawsuit before any more time and resources are expended. Please call me if you have any questions.

In a second letter, the city attorney stated:

Based on the facts presented to the city by your clients' pleadings in the above referenced lawsuit and further review and analysis of the city's anti-discrimination ordinance … it is my opinion and the city's position that as currently represented, the conduct by the Hitching Post is exempt from the requirements of the ordinance and would not be subject to prosecution under the ordinance if a complaint was received by the city.

On March 16, 2015, the plaintiffs filed their First Amended Complaint against the City, alleging in part:

The First Amendment does not allow the government to force regular citizens or religious corporations much less ordained ministers to choose between suffering escalating fines and jail time for following their religious beliefs and ordination vows or forsaking their religious beliefs and ordination vows and perform same-sex wedding ceremonies. But that is exactly the choice City Ordinance § 9.56 required, and is still requiring, the plaintiffs to make. For these reasons, the plaintiffs and Hitching Post ask this Court to award them compensatory damages for the days they were forced to close due to the City's threats to enforce Ordinance § 9.56 against them, and to enjoin the Ordinance and declare it unconstitutional as applied to them because this application violates the Free Speech Clause, the Free Exercise Clause, the Equal Protection Clause, the Due Process Clause, and Idaho's Free Exercise of Religion Protected Act.

On March 30, 2015, the City filed a Motion to Dismiss, arguing that the plaintiffs' First Amended Complaint should be dismissed because they lacked standing and their claims were not ripe for review. More to the point, the City argued that, because the Hitching Post qualified as a religious corporation, it was exempt from the Ordinance it was challenging; and, because the Ordinance did not apply to the Hitching Post or the plaintiffs, they lacked standing to bring their lawsuit and their claims were not ripe for review.

Standing

Article III of the Constitution confines the work of a federal court to actual "cases" or "controversies." To satisfy Article III's "case" and "controversy" requirement, a plaintiff must have standing to bring the complaint. The City's Motion to Dismiss asserted that the plaintiffs lacked standing to bring their claim in federal court.

To establish standing under Article III, a plaintiff must prove:

  1. an injury that is concrete, and actual or imminent;
  2. a causal connection between the injury and the conduct in dispute; and
  3. a sufficient likelihood that the relief sought will redress the injury.
It is essential for church leaders to remain informed about the text and interpretation of the public accommodations laws in their state and city.

The court concluded that the plaintiffs' alleged injuries were not "concrete, actual, or imminent" and therefore they failed the first requirement of standing. It noted that this element of standing requires an examination of three factors: "(1) whether the plaintiffs have articulated a concrete plan to violate the law in question, (2) whether the authorities have communicated a specific warning or threat to initiate proceedings, and (3) the history of past prosecution or enforcement under the challenged statute."

The court concluded that each of these three requirements "weighed heavily" against a finding of standing:

First, the plaintiffs' insistence that they will refuse to perform same-sex wedding ceremonies does not describe a concrete plan to violate the Ordinance … . To the contrary, where the City does not dispute plaintiffs' status as meeting the safe harbor of a "religious corporation" under the Ordinance, the fact that plaintiffs do not (and will not) perform same-sex wedding ceremonies does not amount to a violation of (or a plan to violate) the Ordinance. Simply put, there is no past or future actionable violation of the Ordinance on these facts given the plaintiffs' assertion that their business is a religious corporation under the Ordinance, and the City's stipulation to the same upon the facts of this case. Plaintiffs' concern that the Hitching Post's protected status may change in the future (to the point that it would then be unequivocally violating the Ordinance) is not sufficiently actual or imminent … . [Since the City Attorney's] October 23, 2014 letter to plaintiffs' counsel, there has been no suggestion that plaintiffs do not remain an excepted religious corporation under the Ordinance. As a result, there can be no legitimate "concrete plan" to violate the Ordinance.
Second, it likewise cannot be said that prosecuting authorities have communicated a specific warning or threat to prosecute plaintiffs for violating the Ordinance. For example, on March 23, 2014 [the City Attorney] said in a perfectly clear fashion, that: "Based on … further review and analysis of the city's anti-discrimination ordinance it is my opinion and the city's position that as currently represented, the conduct by the Hitching Post is exempt from the requirements of the ordinance and would not be subject to prosecution under the ordinance if a complaint was received by the city … . Moreover [the City Attorney] on behalf of the City has said to the plaintiffs that "they will not be prosecuted for refusing to perform same-sex marriages" and that "so long as plaintiffs remain a religious corporation, they will not be prosecuted pursuant to the Ordinance … ."
Third, plaintiffs have not identified any instance in which the City has initiated proceedings against an individual or business for violating the Ordinance, or prosecuted anyone for violating any provision of the entire ordinance … . The lack of any such enforcement history does not support a finding that plaintiffs have standing to bring a pre-enforcement challenge to the Ordinance.
Without the presence of any of the factors necessary to establish standing for a pre-enforcement challenge, the plaintiffs cannot bring a pre-enforcement challenge to the Ordinance. Defendant's Motion to Dismiss is therefore granted in this respect.

Relevance to church leaders

A number of issues pertaining to same-sex marriage, sexual orientation, and gender identity continue to cause confusion and apprehension for many churches and clergy. This is reflected in the Idaho case summarized in this article. The plaintiff-ministers challenged the constitutionality of a municipal "public accommodations" Ordinance based on their fear that it could be used to punish them for their refusal to perform same-sex marriages despite the fact that the Ordinance had never been used in such a manner, and the City Attorney's assurances that so long as the Hitching Post remained a religious organization—and absent any future change in applicable local, state, or federal law—he would not prosecute them for violating the Ordinance.

But questions remain, most notably whether churches are subject to provisions in a state or local "public accommodations" law banning discrimination by places of public accommodation on the basis of sexual orientation, marital status, or gender identity in the use of church property. The most common questions include the following:

  • Can churches or clergy be penalized under a state or local public accommodations law for sermons and other teachings that reject, on doctrinal grounds, same-sex marriages or gender identity different from one's gender at birth?
  • Can churches or clergy be penalized under a state or local public accommodations law for refusing to allow same-sex marriages to be performed on church property?
  • Can churches or clergy be penalized under a state or local public accommodations law for denying access to certain programs and activities on the basis of sexual orientation, same-sex marriage, or gender identity?

The main vulnerability in such cases is a state or local public accommodations law that bans specified forms of discrimination. The following analysis should enable church leaders to assess the potential application of the nondiscrimination provisions in a public accommodations law:

  1. Is the church a "place of public accommodation" under applicable local, state, or federal laws?
  2. What forms of discrimination are prohibited by places of public accommodation (i.e., sexual orientation, same-sex marriage, gender identity)?
  3. If a state or local public accommodations law defines a "place of public accommodation" to include churches, or if a regulatory agency has done so, can the church assert a constitutional defense to coverage based on the First Amendment's free exercise or nonestablishment of religion clauses?

These questions are addressed below, in light of the Idaho court's ruling and in light of existing precedent.

Is the church a "place of public accommodation"under applicable local, state, or federal laws?
The first question to resolve in investigating the application of a public accommodations law to a church is whether churches satisfy the definition of a "place of public accommodation" under the law. There are three possibilities:
  • The law excludes churches from the definition of a "place of public accommodation."
  • Churches are excluded from the definition of a "place of public accommodation" but only if certain conditions are met. For example, a church does not rent its property to the general public for weddings and other events.
  • Churches are included in the definition of a place of public accommodation even if they do not rent their property to the general public or engage in any other commercial activity. To illustrate, four churches challenged a Massachusetts law that was construed by the state attorney general to include "houses of worship" within the definition of a place of public accommodation regardless of rental or other commercial activity. The state attorney general later announced that "while religious facilities may qualify as places of public accommodation if they host a public, secular function, an unqualified reference to 'houses of worship'" was inappropriate.
Whether churches are deemed to be places of public accommodation under state or local law will depend on the language of the applicable public accommodations law. A table accompanying this article (pages 6 and 7) contains summaries of most of the court cases that have ever addressed this question.
What forms of discrimination are prohibited by places of public accommodation (i.e., is gender identity included)?
The forms of discrimination forbidden by public accommodations laws vary from jurisdiction to jurisdiction. And, they are often amended, so it is important for church leaders to be familiar with the current text of applicable public accommodations laws.
If a state or local public accommodations law defines a "place of public accommodation" to include churches, or is so construed by a court or administrative agency, can a church assert a constitutional defense to coverage based on the First Amendment's free exercise or nonestablishment of religion clauses?
As noted in a table in this article, several courts and administrative agencies have said that there are constitutional limits on the authority of government agencies to enforce the nondiscrimination provisions of public accommodations laws against churches. To illustrate, a federal district court in Iowa ruled that a church's fear of being sued for violating a public accommodations law as a result of sermons on biblical sexual morality was too fanciful to give the church "standing" to pursue its claim in federal court. Fort Des Moines Church v. Jackson, 2016 WL 6089642 (S.D. Iowa 2016). The court concluded:
Plaintiff alleges that it fears prosecution under the state and municipal discrimination bans if … its pastor delivers his sermon about biological sex and the Bible. However [this fear] is not objectively reasonable. All of the statutes, the ordinances, and the interpretations of the provisions appearing in the [state civil rights agency's] guidance documents include an exemption for religious institutions when conducting religious activities. Although the definitive scope of this exemption is yet to be determined, the court concludes the delivery of a sermon by a pastor of a church is undoubtedly an act intended to serve "a bona fide religious purpose." Indeed, it is a quintessential religious activity. See Fowler v. State of R.I., 345 U.S. 67 (1953) … [in which the Supreme Court ruled] that it is not within "the competence of courts under our constitutional scheme to approve, disapprove, classify, regulate, or in any manner control sermons delivered at religious meetings," and "sermons are as much a part of a religious service as prayers." Hence, plaintiff's allegedly chilled course of conduct is not even arguably proscribed by the statute. Rather, it is expressly permitted. Accordingly, plaintiff's fear of enforcement consequences if it delivers the sermon is not objectively reasonable because it does not face a credible threat of prosecution on that basis … . A plaintiff cannot show a threat of prosecution under a statute if it clearly fails to cover his conduct.
Similarly, in Presbytery of New Jersey v. Florio, 40 F.3d 1454 (3rd Cir. 1994) aff'd 99 F.3d 101 (1996), a federal district court in New Jersey ruled that the New Jersey Law Against Discrimination (NJLAD), which prohibits discrimination on various grounds, including gender identity and sexual orientation in any "place of public accommodation," did not apply to a church. The court relied on an affidavit submitted by the director of the state division of civil rights (the "Stewart affidavit") setting forth the position of the division and state attorney general regarding enforcement of the nondiscrimination provisions in the state public accommodations law against religious institutions. The Stewart affidavit affirmed that the state did not consider churches places of "public accommodations," and so the sections relating to public accommodations were "inapplicable to the church plaintiffs." The Stewart affidavit also made the following general statement:
It has been the consistent construction and interpretation of the [law] that, consonant with constitutional legal barriers respecting legitimate belief and free exercise protected by the First Amendment, the state was not authorized to regulate or control religious worship, beliefs, governance, practice or liturgical norms, even where ostensibly at odds with any of the law's prohibited categories of discrimination … .
Moreover, the division has not and has no intention to engage in any determination or judgment as to what is or is not a "religious activity" of a church, or to determine what is or is not a "tenet" of religious faith. Within First Amendment limits, all of plaintiffs' claimed religiously-based free exercises of faith are unthreatened by a reasoned construction of the NJLAD consistent with its meaning and long enforcement history.

Conclusions

While the definition of a "place of public accommodation" varies from jurisdiction to jurisdiction under laws prohibiting various forms of discrimination by places of public accommodation, the following generalizations may be helpful.

First, it is likely that a church that does not invite or solicit the general public to come onto its premises, whether to raise revenue or not, for events or activities unrelated to the core mission of the church, will not be deemed a place of public accommodation and therefore will not be subject to the nondiscrimination provisions in a state or local public accommodations law. This is a generalization that likely will be true in many, perhaps most, cases—but not all. As noted previously, the State of Massachusetts enacted a law in 2016 adding gender identity to the forbidden forms of discrimination by places of public accommodation. The Massachusetts law states:

An owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement that lawfully segregates or separates access to such place of public accommodation, or a portion of such place of public accommodation, based on a person's sex shall grant all persons admission to, and the full enjoyment of, such place of public accommodation or portion thereof consistent with the person's gender identity.

The law directed the Massachusetts Commission Against Discrimination (MCAD) and state attorney general to issue regulations or guidance facilitating the implementation of the new law. The MCAD issued "Gender Identity Guidance," which states that "a church could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the public."

The attorney general also issued its "Gender Identity Guidance for Public Accommodation" and stated on its website that "houses of worship" are places of public accommodation. The attorney general later clarified its position as a result of a lawsuit brought by four churches, and concluded that "while religious facilities may qualify as places of public accommodation if they host a public, secular function, an unqualified reference to 'houses of worship'" as an example of a place of public accommodation was inappropriate.

Second, it is likely that a church that invites the general public onto its premises for purposes unrelated to worship or other activities in furtherance of the church's religious purposes will be deemed a place of public accommodation, especially if the primary purpose in doing so is raising revenue.

Key point. The court in the Iowa case referenced above cautioned that its conclusion that the church was not a place of public accommodation might have been different had the church "allowed the use of its facility as commercially available space with no religious limitations placed on such use." Fort Des Moines Church v. Jackson, 2016 WL 6089642 (S.D. Iowa 2016).

These two conclusions cover some cases, but not all. For example, what about churches that invite the public onto their premises without charging rent? Does a public invitation transform a church into a place of public accommodation, even if no rent or fees are charged? The answers to these questions are unclear. There is no doubt that some courts would deem the public invitation to be sufficient to make the church a place of public accommodation, even if no rent or other fees are charged. But this likely would not be the conclusion of all courts. Because of these conclusions, it is essential for church leaders to remain informed about the text and interpretation of the public accommodations laws in their state and city, and to seek legal counsel for guidance.

The Application of Public Accommodations Laws to Churches:
A review of the leading cases in chronological order

case holding
Traggis v. St. Barbara's Greek Orthodox Church, 851 F.2d 584 (2d Cir. 1988) A church had not violated a Connecticut law banning several kinds of discrimination in places of public accommodation because churches are not a place of public accommodation.
Roman Catholic Archdiocese v. Commonwealth of Pennsylvania, 548 A.2d 328 (Penn. 1988) Parochial schools run by a Catholic church are not places of public accommodation under Pennsylvania law.
Presbytery of New Jersey v. Florio, 40 F.3d 1454 (3rd Cir. 1994) aff'd 99 F.3d 101 (1996) In dismissing a church's request for an injunction barring the state from applying against churches a public accommodations law banning discrimination based on sexual orientation, the court relied in part on the following assurance provided by a state civil rights agency: "It has been the consistent construction and interpretation of the [law] that, consonant with constitutional legal barriers respecting legitimate belief and free exercise protected by the First Amendment, the state was not authorized to regulate or control religious worship, beliefs, governance, practice or liturgical norms, even where ostensibly at odds with any of the law's prohibited categories of discrimination."
Wazeerud-Din v. Goodwill Home & Missions, Inc., 737 A.2d 683 (1999) A church's addiction program was not a place of public accommodation under New Jersey law; the group was essentially religious in nature in that it devoted time to the study of Christian tenets and "a religious institution's solicitation of participation in its religious activities is generally limited to persons who are adherents of the faith or at least receptive to its beliefs."
Donaldson v. Farrakhan, 762 N.E.2d 835 (Mass. 2002) The Massachusetts Supreme Judicial Court considered whether a public accommodation law applied to a religiously affiliated event that was not open to women. The event in question was a speaking event promoted, organized, and funded by a mosque, and presented by minister Louis Farrakhan at a city-owned theater, to address drugs, crime, and violence in the community. The court found that the event was not a "public, secular function" of the mosque. The court also found that application of the public accommodation law to require the admission of women to the event "would be in direct contravention of the religious practice of the mosque" because it would impair the "expression of religious viewpoints" of the mosque with respect to the "separation of the sexes" and the role of men in the community. The court thus further held that the "forced inclusion of women in the mosque's religious men's meeting by application of the public accommodation statute" would "significantly burden" the mosque's First Amendment rights of expression and association.

The Application of Public Accommodations Laws to Churches:
A review of the leading cases in chronological order

case holding
Sailant v. City of Greenwood, 2003 WL 24032987 (S.D. Ind. 2003) "The church is not a place of public accommodation."
Vargas-Santana v. Boy Scouts of America, 2007 WL 995002 (D.P.R. 2007) "As a matter of law, a church is not a place of public accommodation."
Abington Friends School, 207 WL 1489498 (E.D. Pa. 2007) In a case involving the interpretation of the exemption of religious organizations from the public accommodations discrimination provisions in the Americans with Disabilities Act, the court quoted from the ADA regulations: "Although a religious organization or a religious entity that is controlled by a religious organization has no obligations under the rule, a public accommodation that is not itself a religious organization, but that operates a place of public accommodation in leased space on the property of a religious entity, which is not a place of worship, is subject to the rule's requirements if it is not under control of a religious organization. When a church rents meeting space, which is not a place of worship, to a local community group or to a private, independent day care center, the ADA applies to the activities of the local community group and day care center if a lease exists and consideration is paid." 28 C.F.R. Pt. 36, App. B (2007).
Sloan v. Community Christian School, 2015 WL 10437824 (M.D. Tenn. 2015) This case addressed the definition of "a place of public accommodation" under Title III of the ADA, rather than a state or local public accommodations law. Nevertheless, its discussion of this key term provides some clarification, even if by inference. It suggests that churches that operate "a day care center, a nursing home, a private school, or a diocesan school system," may be places of public accommodation subject to the nondiscrimination provisions of a local or state public accommodations law.
Barker v. Our Lady of Mount Carmel School, 2016 WL 4571388 (D.N.J. 2016) "Although churches, seminaries and religious programs are not expressly excluded from the definition of 'place of public accommodation,' the legislature clearly did not intend to subject such facilities and activities to the [public accommodations law]. Thus, the claims against these institutional defendants fail as a matter of law."
Fort Des Moines Church v. Jackson, 2016 WL 6089642 (S.D. Iowa 2016) A federal district court in Iowa refused to issue an injunction preventing state and local public accommodation laws from being enforced against it, since there was no injury to be redressed. The court referenced an exception in the law for churches, and an affidavit from the state and city defendants that they had never applied the law to churches. But the court cautioned that a church that "engages in non-religious activities which are open to the public" would not be exempt, and it cited as examples "an independent day care or polling place located on the premises of the place of worship."
Hitching Post Weddings v. City of Coeur d'Alene, 172 F.Supp.3d 1118 (D. Idaho 2016) A federal district court in Idaho ruled that the ministers of a "religious corporation" lacked "standing" to challenge the constitutionality of a municipal public accommodations law that they believed violated their constitutional rights of speech and the free exercise of religion because of their apprehension that they would be punished for refusing to perform same-sex marriages. The court concluded that the religious corporation lacked standing to litigate its claims since its concerns over future punishment for violating the ordinance was not a sufficient injury to satisfy the standing requirement. The court noted that no entity had ever been prosecuted for violating the ordinance, and that the city attorney had informed the church that it would not be prosecuted.
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Posted:
  • June 14, 2017

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