State Public Accommodations Survey

Significantly in some places, but less so in others. Here’s why the answer to this complex question varies—yet matters a great deal.

In 2015, the US Supreme Court’s landmark 5-4 decision in Obergefell v. Hodges recognized the fundamental right for same-sex couples nationwide to marry. 

The ruling immediately prompted numerous questions, particularly from church leaders across the country. While congregations with liberal views regarding sexuality and marriage hailed Obergefell as a significant victory, conservative churches holding an orthodox view of marriage as a God-ordained union between one man and one woman expressed numerous concerns. Common questions after Obergefell from church leaders with these traditional views included:

In the years since the Court’s ruling, some answers have emerged. But uncertainties nonetheless persist. 

For instance, regarding the first question above, the answer is no. Under the First Amendment and related court decisions, no minister can be compelled to teach, preach, or officiate in a manner that goes against his or her deeply held theological beliefs. As attorney Richard Hammar notes in Pastor, Church & Law, Fifth Edition, the Constitution “protects the free exercise of religion, and perhaps the most fundamental expression of this right is the unfettered freedom of ministers to perform the sacerdotal functions of their faith, including marriage, consistently with their religious convictions.”

The attempt to answer the second question, however, showcases the uncertainty that still abounds—although its resolution may arrive soon. In recent years, several state commissions and agencies across the country have penalized a variety of businesses, such as bakers, florists, and photographers that decline to serve same-sex couples for their wedding ceremonies. 

These sanctions have been primarily administered through state or local public accommodations laws, which prohibit discrimination by public places against people based on any number of characteristics, such as race, sex/gender, religion, national origin, marital status, age, and in some instances, sexual orientation and/or gender identity. Legal conflicts have consequently erupted as affected business owners contend their constitutionally protected religious freedoms are burdened by the enforcement of these laws. The Supreme Court recently weighed in on this discussion with its ruling in 303 Creative LLC v. Elenis, a case dealing with a Colorado public accommodations law. The Court held that “no public accommodations law is immune from the demands of the Constitution.” 

Turning to the third question, further uncertainty and ambiguity remain, largely because of the aforementioned public accommodations laws. Much like the First Amendment protects ministers, so too does it protect churches and their abilities to refuse hosting events and activities that run contrary to their beliefs. But how far does that First Amendment protection extend, particularly when a church allows outside groups to use its building? Or when a church operates an on-site bookstore or coffee shop throughout the week, not just during worship services? Or when a church rents out its sanctuary to outsiders seeking a place for their wedding ceremony? 

In other words, how is the line drawn between those church activities protected by the First Amendment and those that become subjected to public accommodations laws? That line has profound implications for ministry decision-making.

In a dedicated effort to better address these uncertainties, Church Law & Tax researched public accommodations laws and court decisions for every state. The goal: Identify when and where these statutes affect churches, helping leaders better understand their rights and responsibilities as well as ways to effectively minimize potential legal liabilities while balancing ministry goals and outreach opportunities. 

The result of this research effort is the resource you hold in your hands. In addition to a series of tables offering “at-a-glance” views, it features individual reports covering each of the fifty states, the District of Columbia, and the federal government. These individual reports outline:

In compiling this information, certain trends and developments began to emerge. As church leaders navigate the reports, the following 10 findings may provide more helpful guidance. 

Finding No. 1: The Civil Rights Act of 1964 bans discrimination by places of public accommodation

Title II of the Civil Rights Act of 1964 prohibits places of public accommodation from discriminating against people based on their race, color, religion, or national origin. 

The federal statute covers inns, hotels, and motels. It also reaches restaurants, cafeterias, and other facilities “principally engaged in selling food for consumption on the premises” as well as gas stations, theaters, concert halls, or stadiums—as long as these types of establishment either serve patrons from other states or sell products, performances, or exhibitions that have moved in some way through interstate commerce (such as communications (including advertisements) or shipments between states or from a foreign country). 

If an establishment is not named by the law or does not meet those factors involving interstate activities, then the law most likely does not apply to it. In the years since the federal law’s adoption, many state and local governments have responded to Title II’s limitations by passing laws that cover more protected classes in a broader range of settings. Churches consequently must be aware of those state and local laws.

Finding No. 2: 45 states, plus the District of Columbia, have public accommodations laws

Forty-five states, plus the District of Columbia, have enacted their own public accommodations laws. Like the federal government, all prohibit discrimination on the basis of race, color, religion, or national origin. But most go further. Sex, gender, marital status, sexual orientation, gender identity, age, and military status are among those most often named as additional protected classes. 

Of note: 

State laws usually go into much greater detail regarding the types of establishments deemed to be places of public accommodation, too. For instance, Montana defines a public accommodation as a “place that caters or offers its services, goods, or facilities to the general public,” and then specifically lists nearly 30 types of establishments that are included—from restaurants and campgrounds to swimming pools and ice cream parlors. 

Conversely, California casts a wide net, simply stating its law includes “all business establishments of every kind whatsoever.”  

Churches in states with these laws should carefully read the statutes in this resource and consult with qualified local counsel to precisely understand what types of establishments fall under these laws and what requirements are specifically triggered.

Finding No. 3: Five states do not have public accommodations laws

Alabama, Georgia, Mississippi, North Carolina, and Texas do not have public accommodations laws. 

This means any complaints regarding alleged discrimination in these states must be filed under either the federal government’s anti-discrimination statute found in Title II of the Civil Rights Act of 1964 (if it applies), a local ordinance (if one exists), and/or a civil lawsuit (though its likelihood of prevailing is diminished if a law or ordinance does not exist or apply).

Finding No. 4: Among the existing federal and state laws, none explicitly name churches as places of public accommodation—and no court decisions do, either

Title II of the Civil Rights Act does not specifically name churches as places of public accommodation, nor do any states. Neither do any federal or state court decisions interpreting these laws. In fact, on several occasions, both courts and municipal leaders have specifically stated churches are not places of public accommodation. 

A 2016 case brought by a church in Iowa, for instance, was dismissed. The court believed there wasn’t a credible threat the state and local public accommodations laws would be applied against the church, even though it wished to communicate “qualifications based on gender identity on who may use its restrooms and showers.” Similarly, a 1994 decision by the Third Circuit concluded New Jersey’s nondiscrimination law (which includes sexual orientation and gender identity as protected classes) was inapplicable to churches. And in 2010, the Louisiana attorney general issued an opinion letter proclaiming “a church is not a place of public accommodation.” 

But note: a handful of court decisions have determined an entity operating similarly to a church to be a place of public accommodation. For instance, more than 35 years ago, a California appellate court determined a not-for-profit publishing ministry was a place of public accommodation due largely to its combination of commercial and noncommercial activities (Pines v. Tomson (160 Cal. App. 3d 370) (1984)). 

Additionally, some courts across the country—including a federal district court in Tennessee in 2015—have concluded that certain aspects of a church-run entity, such as a daycare, private school, or nursing home, are considered places of public accommodation. 

Finding No. 5: Many public accommodations laws provide exemptions for religious organizations—but they are limited, and some make no religious exemptions at all

Although churches are not explicitly named as public accommodations by statute or court decision anywhere, such exclusions may only pertain to their worship and teaching activities. Many states provide explicit religious exemptions in their public accommodations laws, and the limits placed with those exemptions are especially telling. Of the twenty-one states offering religious exemptions, many often only do so to the extent the religious entity does not avail itself to the public through activities that involve commercial transactions or invitations to the general public. 

For instance, in Iowa—where sexual orientation and gender identity are among the protected classes—its exemption only applies when a church’s reasons for exclusion “are related to a bona fide religious purpose … unless the religious institution owns or operates property for a commercial purpose or membership in the religion is restricted on account of race, color, or national origin.” 

This type of limitation is significant with respect to determining the line where First Amendment protections may begin and end for churches. Congregations that allow outside groups to use church space—whether free or for a fee—may subject themselves to a local or state public accommodations law. This is especially so for churches that rent out their sanctuaries to outsiders for events, including wedding ceremonies. 

Relatedly, three states—Connecticut, Florida, and Vermont—provide very narrow religious exemptions, but they ease the concerns of churches with traditional views of marriage and sexuality because the exemptions specifically address wedding ceremonies. Rhode Island, which does not give a general religious exemption in its law, previously included that the inclusion of “sexual orientation” in its law “does not . . . impose any duty on a religious organization.” However, this section was amended to be deleted in 2021.

It is also worth noting that a few states are surprisingly broad with their religious exemptions. Take New Jersey, for example. Its public accommodations law covers numerous protected classes, including sexual orientation and gender identity. But it also states:

Nothing herein contained shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised, or controlled by or in connection with a religious organization … from limiting admission to or giving preference to persons of the same religion or denomination or from making such selection as is calculated by such organization to promote the religious principles for which it is established or maintained.

A church in a state with a broad religious exemption may enjoy a greater degree of latitude with respect to the activities and events it permits or refuses with outsiders. But qualified local counsel always should be sought first before making such a determination. 

As for the other twenty-four states, plus the District of Columbia and the federal government, no religious exemptions are explicitly provided. Only general, undefined exemptions for “private clubs” are given—and the parameters set for private clubs often appear irrelevant or inapplicable to churches. 

Finding No. 6: The process for a public accommodations complaint looks the same in most states

Most states with a public accommodations law appoint a commission or agency that is empowered to receive and investigate discrimination complaints made against public accommodations. Some states, like Virginia, have created a specific office—the Office of Civil Rights—to carry out their policy. The commission or agency is frequently authorized to determine probable cause and intervene to resolve the situation. When a resolution is not reached, the commission or agency can hold hearings, subpoena witnesses, reach conclusions, and issue orders that, if necessary, can be enforced by a court.

The key takeaway is this: If a church receives a notice from a commission or agency regarding some type of allegation, it should take such notice seriously and immediately contact the church attorney regarding how to respond. Do not ignore it just because it did not come in the form of an official lawsuit from the party making the allegation. 

Finding No. 7: Penalties vary—and some states recognize a private party’s right to sue for damages

If a commission or agency determines a public accommodation violated the pertinent law, a number of actions are often available to it. These commonly range from cease-and-desist orders and reinstatement orders (allowing the offended party to access and use the public accommodation) to a wide range of monetary fines.

Many—but not all—states also statutorily recognize a private party’s right to sue for damages. It’s important to note that the absence of a statutory right to sue does not prohibit a party from still bringing a lawsuit, but the presence of the right offers a clearer path for a party to take such an action.

Finding No. 8: Religious freedom laws may offer protections to churches facing public accommodations conflicts—but be aware

When a government law or action intentionally targets religious exercise, courts apply a high standard of judicial review known as “strict scrutiny.” This means when a party’s free exercise rights have been burdened by such intentional targeting, the government bears the burden of showing the law is necessary to advance a compelling government interest, and that the law was crafted in the least-restrictive manner possible. This high standard makes it challenging for the law or action to be upheld, making it a significantly valuable protection to the free exercise rights of individuals, churches, and organizations. 

For years, this high standard also was used by courts to evaluate neutral laws of general applicability (meaning ones that do not intentionally target religious activity, either in purpose, language, or application) that only incidentally burdened religious exercise. In other words, a neutral law that incidentally (not intentionally) burdened an individual or party’s free exercise rights still would have to meet the same high standard of judicial review as ones intentionally targeting religious exercise in order to survive. 

However, in 1990, the US Supreme Court issued a controversial decision in a case called Employment Division v. Smith, 494 U.S. 872 (1990). Through this decision, the Court’s majority held that neutral laws did not need to be justified by a compelling government interest whenever they burdened religious exercise. This conclusion made it more likely a neutral law would remain valid, even when it burdened a party’s religious exercise.    

In 1993, a near-unanimous Congress responded to Smith by passing the Religious Freedom Restoration Act (RFRA), which restored the compelling governmental interest/least-restrictive means standard. 

After a 1997 decision by the US Supreme Court determined RFRA applied only to the federal government and its laws, and not those at the state level, a number of states adopted their own RFRAs in an attempt to accomplish a similar restoration. 

However, more than 20 states still have not adopted their own RFRAs. 

In some, their supreme courts or appellate courts have delivered rulings creating a similar standard to a RFRA for evaluating free exercise claims. 

But in others, their supreme courts or appellate courts have indicated that while the higher standard of judicial review remains in place when a law or government action intentionally targets religious exercise, they follow Smith and apply a lesser standard of judicial review when a neutral law incidentally burdens a party’s religious exercise. Again, this means the local or state law or action is more likely to survive a free exercise challenge and remain valid. 

And lastly, nine states do not have a RFRA and no court decisions have made a higher judicial standard for evaluating a law or action required when a party shows its free exercise rights have been burdened. 

For the purposes of public accommodations laws, and their potential applicability to churches, the presence of a RFRA or judicially created RFRA-like protections is important to note. When a RFRA or RFRA-like protection exists, it may offer a church a defense if it faces an allegation claiming it falls under a public accommodations law and violated it. 

However, be aware that such a defense only emerges when a government agency or commission initiates or pursues a claim against a church. A RFRA or judicially created RFRA-like protection is less likely, if at all, to apply to a civil lawsuit filed by a private party. 

Finding No. 9: Since 2021, more states are passing their own state RFRAs that largely mirror the federal RFRA, and the COVID-19 pandemic may have spurred some states to additional action

Since 2021, seven more states have passed RFRAs that may offer protections to churches, depending on the circumstances involved. For the most part, these state RFRAs largely mirror the language in the federal RFRA, but some go further with potential added protections. 

Further, some states like Oklahoma have amended their laws to include language that prohibits the state from restricting churches in ways that differ from other private entities. 

For instance, Oklahoma’s recently amended RFRA states that no governmental entity can declare a religious institution to be “nonessential,” and such institutions cannot be subject to closure/restriction for health or security purposes if those actions are greater than what is imposed on any private entity. 

Similarly, Nebraska’s First Freedom Act prohibits the state from restricting churches during a state of emergency to a greater extent than it restricts other secular businesses/institutions.

Finding No. 10: Public accommodations laws at the state and local level have changed considerably over the years—and likely will continue to do so

Laws are constantly created and amended, and new court decisions are made every day. The area of public accommodations law has rapidly evolved over the past twenty-plus years, and likely will continue to do so in the years to come. Activist groups seeking greater protections for the lesbian, gay, bisexual, transgender, queer (LGBTQ) community see the addition or expansion of public accommodations laws as an effective vehicle for securing those protections. It only stands to reason these laws will only grow, both in number and size, in the years to come.

Church leaders who hold traditional views of marriage and human sexuality must remain informed in order to understand how their churches are ultimately affected. Like many other legal issues, churches should retain and regularly consult with qualified local legal counsel to help them navigate this rapidly evolving issue.

-Matthew Branaugh

Matthew Branaugh is attorney, editor and director of Church Law & Tax. 

Attorney Francesca F. Ewing contributed to this report. 

Three questions church leaders can answer to assess whether federal, state, and local laws potentially affect their churches.

When it comes to public accommodations laws, 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. 

The following analysis should enable church leaders to assess the potential application of the nondiscrimination provisions in a public accommodations law:

These questions are addressed below.

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:

To illustrate, four churches once 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. 

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?

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). 

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 said “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 … .”

It continued: “(T)he 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.” 

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. 

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.

-Richard Hammar

Richard R. Hammar is co-founder of Church Law & Tax.

A Survey of State Public Accommodations Laws—2024 

Below is a chart detailing the public accommodations laws for 45 states, plus the District of Columbia. All states with a public accommodations law prohibit discrimination on the basis of race/color, sex/gender, ancestry/national origin, and religion/creed (note that the federal government’s Title II prohibits discrimination only on the basis of race/color, ancestry/national origin, and religion/creed). 

In addition:

This chart lists the state, the references to the public accommodations law and definitions, and a quick summary of the most commonly protected classes covered. It also notes when a state provides a specific religious exemption to the public accommodations law.

Lastly, five states—Alabama, Georgia, Mississippi, North Carolina, and Texas—do not have public accommodations laws. This means any complaints regarding alleged discrimination in these states must be filed under either the federal government’s anti-discrimination statute found in Title II of the Civil Rights Act of 1964 (if it applies), a local ordinance (if one exists), and/or a civil lawsuit (though its likelihood of prevailing is diminished if a law or ordinance does not exist or apply).

ACKNOWLEDGEMENTS

This resource was created in 2019 by Church Law & Tax attorney and editor Matthew Branaugh, under the supervision of Church Law & Tax attorney, co-founder, and senior editor Richard R. Hammar. 

It was updated in March of 2024 by attorney Francesca F. Ewing, under the supervision of Matthew Branaugh.

For more updates and information, visit ChurchLawAndTax.com.

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