Most states and many cities have enacted laws prohibiting various forms of discrimination by places of public accommodation. Many of these laws prohibit discrimination by places of public accommodation on the basis of sexual orientation or gender identity, and these provisions have raised questions for some pastors, including 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 following analysis should enable church leaders to assess the potential application of the nondiscrimination provisions in a public accommodation law:
- Is the church a “place of public accommodation” under applicable local, state, or federal laws? If so, does the statute or ordinance contain an exemption for churches?
- What forms of discrimination are prohibited by places of public accommodation (i.e., sexual orientation, same-sex marriage, gender identity)?
- 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 existing precedent.
1. PLACE OF PUBLIC ACCOMMODATION
Obviously, 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. An accompanying table contains summaries of most of the court cases that have ever addressed this question.
2. 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 accommodation laws.
3. 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 section, 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 accommodation 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.289 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.
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.”290 See note 289 supra and accompanying text.
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 answer to this question is 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. This makes it essential for church leaders to remain informed about the text and interpretation of the public accommodation laws in their state and city, and to seek legal counsel for guidance.