• Churches are not Places of Public Accommodation

    Churches are not Places of Public Accommodation [*]

    By Caleb C. Wolanek, JD ’17 [**]

    On September 1, the Massachusetts Commission Against Discrimination stated that churches would be subject to the Commonwealth’s “public accommodation” statute.[1] Although Attorney General Maura Healey some time ago slipped “houses of worship” onto her website’s list of places of public accommodations[2] (even though churches are nowhere listed in the public accommodations statute),[3] the Commission’s September 1 “Gender Identity Guidance” boldly stated that “[e]ven 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 general public.”[4]

    But the Commission does not get to write the law—the legislature does. And the text and history of Massachusetts’s nondiscrimination statute shows that churches are not places of public accommodation and are thus not subject to the nondiscrimination statute.[5]

    1. The Massachusetts law historically regulated businesses.

    Consider the statute’s history. As the Supreme Court noted in 1995, early common law required that “innkeepers, smiths, and others who made a profession of public employment” practice nondiscrimination.[6] Similarly, Professor Joseph Singer writes that “[a]ntebellum law imposed a duty to serve the public on common inns and on common carriers. . . . [I]t “also characterized other businesses as ‘common callings,’ and based the duty to serve the public on the fact that a business had held itself out as open to the public.”[7]

    In 1865, Massachusetts was the first state to codify this duty when it prohibited racial discrimination in “any licensed inn, in any place of public amusement, public conveyance or public meeting in th[e] Commonwealth.”[8] The Commonwealth soon expanded the statute to include theatres,[9] skating rinks,[10] and finally any “other public place kept for hire, gain or reward.”[11]

    This language was omitted in 1950 when the nondiscrimination statute started referring exclusively to “place of public accommodation.”[12] That designation had been created in 1933 to refer to a list of businesses: “any inn, . . . restaurant, eating-house, public conveyance on land or water or in the air, bathhouse, barber shop, theatre and music hall.”[13]

    In 1953, the legislature adopted the current definition: “any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public.”[14] This two-pronged definition of “place of public accommodation” persists today.[15]

    This history reveals that the public accommodation statute is aimed at businesses, not mere gatherings. This explains the definition’s “patronage” prong. Just as your local movie theatre might call its guests “patrons,” and just as your corner grocer might have a sign at the door saying “Thank you for your patronage,” so too does the statute single out those with customers. Although one might claim patronage means mere “support,” the statute’s history favors a business-oriented reading.[16] Indeed, although the statute regulates hospitals, clinics, and pharmacies, it only reaches those that “operat[e] for profit.”[17]

    2. Church meetings are not businesses, so they are not places of public accommodations.

    Simply put, churches are not businesses. Church members gather to encourage and admonish one another as they live out their faith; they do not meet to sell goods or services. Although churches often accept donations, these are used to facilitate the religious mission (such as feeding the hungry or paying the church electric bill). These are not business transactions. Indeed, the IRS recognizes that there is no quid pro quo involved with these donations—as demonstrated by the fact that they are tax-deductible.[18]

    One might cite several statutory examples of places of public accommodation in an attempt to show that business patronage is not required. That argument does not succeed. The statute says that an “auditorium, theatre, music hall, meeting place or hall, including the common halls of buildings,” is a place of public accommodation.[19] But this seems to refer to something like a convention center. In those places, including in the “common halls” (which I read to mean “lobby”), persons who rent space and then sell admission (or sell products therein) must practice nondiscrimination. But a church, acting as a church, typically does not sell admission or products. Even if a church hosts a spaghetti dinner that is open to the public, it is not a restaurant.

    Two other examples are a “boardwalk or other public highway” and a “public library, museum or planetarium.”[20] To be fair, neither of these usually charges admission. But these are also usually government institutions. Government libraries and museums need not be labeled places of public accommodation because they are actually public—that is, society as a whole owns them. Even when private citizens own a public library or museum (and do not charge dues or admission), they are organized for the express purpose of allowing the public to use those facilities. And even then, a transactional element remains in libraries: one may take the book only with permission, and they must either bring it back or pay a fine. A church is not that kind of an institution. Churches are gatherings of the faithful, not businesses.

    3. Community use does not transform churches into places of public accommodation.

    But perhaps the Commission is not attempting to restrict what churches do when they gather as a church. After all, the example the Commission gave was that of a “secular” spaghetti dinner. It might have also looked at when a town uses a church building as a polling place on Election Day, or a local piano teacher uses the main hall for a recital. Perhaps the Commission attempts to apply the nondiscrimination statute to those activities.[21]

    But this approach does not succeed. After all, the mere fact that an event does not involve preaching or prayer does not make the gathering non-religious.[22] A more realistic position is that churches are pervasively religious.[23] Therefore, imposing a nondiscrimination requirement actually does inhibit religious activities.

    Indeed, the very motivation for opening the church building to a “secular” event might be religious in nature.[24] This is because a church does more than teach from sacred texts. It also tries to embody those teachings—such as the common admonition to love one’s neighbors. This results in community service. Holding the church building out as a safe and comfortable space is a way to love the neighborhood.[25] But because the church is motivated by its faith, it will almost certainly be selective when allocating the use of its property. (This selectivity would also undermine the “openness” prong of the statutory definition.) A traditional mosque or Southern Baptist church would probably not host a beer festival, and it is hard to imagine many churches hosting an atheist convention.

    4. Interpret the law to avoid First Amendment violations.

    Even assuming the statute’s applicability is ambiguous, we should read the text in a way that avoids a First Amendment violation.[26] Although nondiscrimination is an important goal, so too is enforcing the First Amendment.

    Enforcing nondiscrimination raises serious free exercise concerns. After all, if telling a church it must not fire a minister violates the Free Exercise Clause (because it infringes on the church’s autonomy to preach its message),[27] would it not also violate the Constitution to prohibit what those at a church gathering may say? There are also freedom of speech[28] and freedom of association[29] issues. The Commission should avoid, not invite, these conflicts.[30]

    5. Conclusion

    Public accommodation laws are well-intentioned; their goal is to ensure that all citizens have equal standing in society and public life. But these laws should not infringe on freedom of conscience. Therefore, churches should not be considered places of public accommodation. The Commission should let them be, not threaten them with a statute enforced by fines and jail time.

    Churches are physical embodiments of religious convictions. Telling a church that it cannot act on its beliefs—that it must accept the presence of perceived wrong in its midst—seriously hinders the church’s mission. Worse still, it risks forcing compliance for the sake of compliance—something I thought we abandoned long ago.[31] The First Amendment protects church autonomy from state intrusion by means of a “wall of separation.”[32] Massachusetts should not breach that wall.[33]

    [*] This article was updated on December 14, 2016, to reflect movement in the lawsuit discussed.

    [**] J.D. Candidate, Harvard Law School; B.A. in Political Science, Auburn University. Josh Craddock helped me identify several arguments to make. Any remaining errors are, of course, my own. In the interest of disclosure, I note that I have supported several of the groups that filed the Horizon Christian Fellowship v. Williamson lawsuit mentioned below.

    [1] Mass. Comm’n Against Discrimination, Gender Identity Guidance 1, 4 (Sept. 1, 2016), http://www.mass.gov/mcad/docs/gender-identity-guidance.pdf [https://perma.cc/CF9A-VPKN]. This document entered into force on October 1, 2016.

    [2] Public Accommodation, Att’y Gen. Maura Healey, http://www.mass.gov/ago/consumer-resources/your-rights/civil-rights/public-accomodation.html [https://perma.cc/H8CQ-83K8]. The Attorney General’s Office later removed the reference to “houses of worship” in its list of places of public accommodation. Public Accommodation, Att’y Gen. Maura Healey, http://www.mass.gov/ago/consumer-resources/your-rights/civil-rights/public-accomodation.html [https://perma.cc/U67A-HJSF]; see also Nadeau Aff. at 10, Doc. 25-2, Horizon Christian Fellowship v. Williamson, No. 1:16-cv-12034-PBS (D. Mass. Dec. 7, 2016).

    [3] Mass. Gen. Laws ch. 272, § 92A (2016).

    [4] Mass. Comm’n Against Discrimination, supra note 1, at 4. On December 5, the Commission revised its Gender Identity Guidance, affirming that the public accommodation statute “does not apply to a religious organization if subjecting the organization to the law would violate the organization’s First Amendment rights.” Mass. Comm’n Against Discrimination, Gender Identity Guidance 1, 4 (Dec. 5, 2016), http://www.mass.gov/mcad/docs/gender-identity-guidance-12-05-16.pdf [https://perma.cc/CSW6-G3SN]. “However,” the Commission continued, “a religious organization may be subject to the Commonwealth’s public accommodations law if it engages in or its facilities are used for a ‘public, secular function.’” Id. (quoting Donaldson v. Farrakhan, 762 N.E.2d 835, 839 (Mass. 2002)).

    [5] Throughout this article, I refer to “churches.” This is for two reasons. First, the Commission referred to them as such. Second, like the IRS, I use the word “in its generic sense as a place of worship including, for example, mosques and synagogues.” I.R.S., Publication No. 1828, Tax Guide for Churches & Religious Organizations 1 (Aug. 2015), https://www.irs.gov/pub/irs-pdf/p1828.pdf [https://perma.cc/AZM2-5V7T].

    I only discuss whether the nondiscrimination statute applies to churches, not whether a religious exemption might be available if the law did apply. Massachusetts reviews religious objections to nondiscrimination laws under a strict scrutiny framework. See Att’y Gen. v. Desilets, 636 N.E.2d 233, 236–37 (Mass. 1994); see also Magazu v. Dep’t of Children & Families, 42 N.E.3d 1107, 1117 (Mass. 2016) (applying Desilets in a different context). Thanks to Josh Craddock for noting this distinction.

    [6] Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 571 (1995) (internal quotations omitted).

    [7] Joseph William Singer, No Right to Exclude: Public Accommodations & Private Property, 90 Nw. U. L. Rev. 1283, 1390 (1996).

    [8] 1865 Mass. Acts 650; see also Hurley, 515 U.S. at 571. I base my historical account on the research found in Francis H. Fox, Discrimination and Antidiscrimination in Massachusetts Law, 44 B.U. L. Rev. 30 (1964).

    [9] 1866 Mass. Acts 242.

    [10] 1885 Mass. Acts 774.

    [11] 1893 Mass. Acts 1320.

    [12] 1950 Mass. Acts 323.

    [13] 1933 Mass. Acts 125. This bill also added section 92A to chapter 272 of the General Laws. Id. at 124.

    [14] 1953 Mass. Acts 349 (codified at Mass. Gen. Laws ch. 272, § 92A). The statute lists nearly fifty examples of “places of public accommodation,” but the Supreme Judicial Court has made it clear that those examples are non-exclusive. See Currier v. Nat’l Bd. of Med. Exam’rs, 965 N.E.2d 829, 842 (Mass. 2012); Local Fin. Co. of Rockland v. Mass. Comm’n Against Discrimination, 242 N.E.2d 536, 537–39 (Mass. 1968).

    [15] The legislature has, of course, amended the statute in other ways. See, e.g., 1998 Mass. Acts at 10 (excluding single-sex exercise facilities that do not receive government funds). Notably, the 1953 Act included a “private club” exception: “no place shall be deemed to be a place of public accommodation, resort or amusement which is owned or operated by a club or institution whose products or facilities or services are available only to its members and their guests nor by any religious, racial or denominational institution or organization, nor by any organization operated for charitable or educational purposes.” 1953 Mass. Acts 349. The 1971 Act removed that exception. 1971 Mass. Acts 244–45.

    The Supreme Judicial Court of Massachusetts does not give the removal of the “private club” exception controlling interpretive weight, however; the statutory requirements still apply. See U.S. Jaycees v. Mass. Comm’n Against Discrimination, 463 N.E.2d 1151, 1156 n.4 (Mass. 1984). Moreover, removing the “private club” exception shows a desire to enforce the “openness” requirement, see Concord Rod & Gun Club, Inc. v. Mass. Comm’n Against Discrimination, 524 N.E.2d 1364, 1367 (Mass. 1988), not to alter the patronage prong. Finally, the court held in Donaldson v. Farrakhan, 762 N.E.2d 835, 839 (Mass. 2002), that a religious gathering was insufficiently public to be within the statute’s reach.

    [16] Both definitions are found in the dictionary. See, e.g., Patronage, Black’s Law Dictionary 1308 (10th ed. 2014); Patronage, 11 The Oxford English Dictionary 353 (2d ed. 1989); Patronage, Webster’s Third New International Dictionary of the English Language 1656 (1981). One dictionary focuses on the “financial support” aspect of patronage. See Patronage, Random House Dictionary of the English Language 1422 (2d ed. 1987). Even then, however, there are two possible uses: “A patron in the commercial sense is a customer” whereas one “in the charitable sense is a benefactor—a donor of money . . . to support some endeavor and not as consideration for something of value in return.” Patron, 2 The Wolters Kluwer Bouvier Law Dictionary Desk Edition 1990–91 (2012).

    [17] Mass. Gen. Laws ch. 272, § 92A.

    [18] The concept of a quid pro quo in religious activities is complicated. For example, in Hernandez v. Commissioner the Supreme Court held that Scientology “audit” fees were not deductible. 490 U.S. 680, 694 (1989). But the IRS takes now the position that audit fees are, in fact, deductible. See Rev. Rul. 93-73, 1993-2 C.B. 75 (vacating Rev. Rul. 78-189, 1978-1 C.B. 68). This same debate can play out in numerous other contexts, and it raises a host of issues. See Borris I. Bittker & George K. Rahdert, The Exemption of Nonprofit Organizations from Federal Income Taxation, 85 Yale L.J. 299, 342–45 (1976) (describing some of the issues). For now, I simply assume there is no quid pro quo, and I encourage churches to ensure that assumption holds true.

    [19] Mass. Gen. Laws ch. 272, § 92A.

    [20] Id.

    [21] I do not believe this is the best reading of the Commission’s guidance, but I am giving it the benefit of the doubt.

    [22] See Eugene Volokh, Massachusetts: Churches may be covered by transgender discrimination bans, as to ‘secular events, Wash. Post (Sept. 8, 2016), https://www.
    washingtonpost.com/news/volokh-conspiracy/wp/2016/09/08/massachusetts-churches-may-be-covered-by-transgender-discrimination-bans-as-to-secular-events [https://perma.cc/NR4A-DAQ3] (hypothesizing that “‘secular events’ . . . means events that don’t involve overt worship”).

    [23] Cf. Christiana Holcomb, 5 Ways Churches Can Protect Gospel-Centered Ministry, Light Mag., Summer 2016, at 30, 32 (encouraging churches to be selective and to emphasize their religious mission).

    [24] This does not mean churches will be able to turn people away from the voting booth. Churches make their facilities available for that use as a public service, but governments are not required to use church facilities. If the church does not agree to practice nondiscrimination on the day the church is used as a polling place, the municipality may and should choose another location.

    [25] A lawsuit challenging Massachusetts’s law made exactly this point. Complaint at 3–4, Horizon Christian Fellowship v. Williamson, No. 1:16-cv-12034 (D. Mass. Oct. 11, 2016).

    [26] The Supreme Judicial Court likely did this in Donaldson v. Farrakhan when it decided that a religious meeting was not a place of public accommodation. 762 N.E.2d 835, 840–41 (Mass. 2002). The court’s central reasoning was that the meeting was not open to the public. Id. at 841 (“The admittance of male members of the public to an otherwise nonpublic mosque meeting does not bring the event within the scope of the Massachusetts public accommodation law. Holding otherwise would impermissibly burden the defendants’ freedom of association under the First Amendment.”). The court also hinted that all religious meetings were exempt. See id. at 839 (holding the statute did not apply as there was insufficient evidence the meeting was a “public, secular function”) (emphasis added).

    It is well-established that courts should interpret statutes to avoid implicating the Constitution. See Gomez v. United States, 490 U.S. 858, 864 (1989) (“It is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.”); Pielech v. Massasoit Greyhound, Inc., 668 N.E.2d 1298, 1302 (Mass. 1996) (articulating this canon of construction in Massachusetts). Some criticize the doctrine that courts should avoid constitutional questions. See generally, e.g., Neal Kumar Katyal & Thomas P. Schmidt, Active Avoidance: The Modern Supreme Court and Legal Change, 128 Harv. L. Rev. 2109 (2015). But these critics “have not objected to a separate canon that favors avoiding actual unconstitutionality—the longstanding principle that courts should not lightly interpret a statute in a way that makes it unconstitutional if some other interpretation is available.” Caleb Nelson, Avoiding Constitutional Questions Versus Avoiding Unconstitutionality, 128 Harv. L. Rev. F. 331, 331 (2015); see id. at 339 (supporting giving the canon “some weight in the interpretive process”).

    One might cite the Supreme Judicial Court’s statement that the statute should be given “‘a broad, inclusive interpretation’ to achieve its remedial goal of eliminating and preventing discrimination.” Currier v. Nat’l Bd. of Med. Exam’rs, 965 N.E.2d 829, 842 (Mass. 2012) (quoting Local Fin. Co. of Rockland v. Mass. Comm’n Against Discrimination, 242 N.E.2d 536, 538 (Mass. 1968)). Moreover, the Commission receives “substantial deference” in interpreting the statute. See Dahill v. Police Dept. of Bos., 748 N.E.2d 956, 961 (Mass. 2001). But it seems obvious to me that these canons should give way to concerns about constitutional violations.

    [27] See Hosanna-Tabor Evangelical Lutheran Church & Sch., 132 S. Ct. 694, 706 (2012).

    [28] See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 61 (2006) (citing W. Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943)) (“Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.”). I thank Josh Craddock for reminding me of this point.

    [29] See Boy Scouts of Am. v. Dale, 530 U.S. 640, 657 (2000).

    [30] The lawsuit challenging the Commission’s decision to treat churches as places of public accommodation reads the public accommodation statute to apply to church “services, events, activities, and other religious programming open to the public.” Complaint at 17, Horizon Christian Fellowship v. Williamson, No. 1:16-cv-12034 (D. Mass. Oct. 11, 2016). Its claims are therefore constitutional objections. See id. at 22 (freedom of religion); id. at 24 (due process); id. at 27 (expressive association); id. at 28 (free speech); id. at 32 (peaceable assembly). The churches dismissed the case on December 12, citing the state’s acknowledgement that the churches’ activity was not prohibited by the law. Notice of Voluntary Dismissal at 2–4, Doc. 32, Horizon Christian Fellowship v. Williamson, No. 1:16-cv-12034-PBS (D. Mass. Dec. 12, 2016); see also supra notes 2 & 4.

    [31] Compare Barnette, 319 U.S. at 642 with Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 594–95 (1940); see also Michael Stokes Paulsen, The Unconscionable War on Moral Conscience, 91 Notre Dame L. Rev. 1167, 1170–79 (2016) (reviewing Robert P. George, Conscience and its Enemies: Confronting the Dogmas of Liberal Secularism (2013)).

    [32] See Letter from Thomas Jefferson, President of the United States of America, to Messrs. Nehemiah Dodge, Ephraim Robbins, and Stephen S. Nelson, A Committee of the Danbury Baptist Association in the State of Connecticut (Jan. 1, 1802), in 16 The Writings of Thomas Jefferson 281, 281–82 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1905); Roger Williams, Bloudy Tenent of Persecution for Cause of Conscience Discussed: and Mr. Cotton’s Letter, Examined & Answered 435 (1644) (Edward Bean Underhill ed., 1848).

    [33] Cf. Everson v. Bd. of Ed., 330 U.S. 1, 18 (1947) (“The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”).

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