Harvard Journal on Legislation

by on

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.

[Read more…] about Churches are not Places of Public Accommodation

by on

Making Cities Work

Making Cities Work

By Nino Monea JD ‘17

National elections dominate the news. But precious little policy is actually coming out of Washington these days. And officials there are often disconnected from our daily lives. At the local level, the challenges of how to run an effective city may appear more mundane on the surface, but that does not mean they are less important, or less complex.

Among the most persistently vexing questions that local leaders face is how to attract families and businesses. In January, professors from Wayne State University and Michigan State University published a working paper that found that virtually all trendy economic development strategies employed by cities over the past several years, such as building casinos, are not the driving force behind growth.[1]

Many cities attempt to spur economic growth using unproven techniques. Casinos are a perfect example of economic snake oil. In Atlantic City, lawmakers successfully pushed casinos on a skeptical population with the promise that the casinos would dedicate 2% of their annual revenue to the “health and well-being” of the city.[2] After being built, the casinos were able to subvert the “health and well-being” part of the deal through a legal loophole.[3] Much like the slot machines that they peddle, casinos usually have long odds for the city.

Rather than creating long-term growth, these sorts of projects often amount to little more than spitting matches between states. In 2013, then-Texas Governor Rick Perry made headlines for buying television ads in California encouraging businesses in the Golden State to relocate to Texas.[4] The end result is not that new jobs are created; they are simply relocated.[5]

Last year, Boston fervently attempted to win its bid to host the 2024 Olympic Games. The bid was vigorously opposed by the community group No Boston Olympics, which pointed out that the average price tag to an Olympic host city is $15 billion.[6] The group also cited research that shows Olympic Games are bad investments. In fact, there has never been a profitable one, unless accounting tricks are used to gin up the numbers, such as counting subsidies from the government as revenue.[7]

At least Boston had a relatively happy ending, as the community activists ultimately won and forced the city to drop its bid,[8] and so the city did not end up losing any money. The same cannot be said for Brazil, which hosted the 2014 World Cup. The country spent $600 million to build a massive stadium in the rainforest city of Manaus that was used for all of four games.[9] Another World Cup stadium cost Brazil $550 million and is now being used as a parking lot.[10] This is a tremendous waste, given that, in Rio de Janeiro alone, over 200,000 people lack adequate housing.[11]

Of course, not everything in life can be measured in dollars and cents. There can be perfectly legitimate reasons to invest in public projects that do not return a profit. The Hubble Space Telescope has not earned a dime, but that doesn’t make its photos any less stunning, or the knowledge about the universe that we have gained from it any less profound. But at the same time, if the goal of a project is explicitly to bolster economic growth, municipal leaders need to be upfront about what works and what does not.

In addition to being honest about which projects work, we also need to ask whom the projects are working for. In Detroit, casinos did honor their agreement to hire at least 51% Detroit residents, but several years after their development, there was no black representation in the casinos’ ownership, and the entry-level workers saw lower-than-expected wages.[12] Moreover, the promise that the casinos would deliver $73 million for minority- and women-owned businesses never came to be.[13]

In Boston, wealthy developer John Fish appeared to be the principal beneficiary from hosting the Olympics. Although he pledged to not bid on any projects, he said he would pursue contracts with transportation and college building agencies that would likely see upgrades in preparation for the games.[14] Conversely, many areas around the state would not have seen any investments from the Olympics.[15] Even worse, in Brazil, hundreds of thousands were displaced when their communities were bulldozed to make way for the gleaming new stadiums.[16]

So is there anything that cities can do? According to Professor Laura Reese, a co-author of the economic development report from January, the solution is straightforward: “[j]ust run a good basic city.”[17] To do this, city leaders should invest in things such as education, which is more strongly connected to economic growth.[18]

While investing in public schools and basic municipal services probably is not as glamorous as a shiny new development project, it is a sounder strategy. It is no secret that there are tremendous benefits of early childhood intervention programs —particularly in low-income communities. A Rand Corporation survey of well-designed early childhood intervention programs found a litany of benefits ranging from higher academic achievement to lower delinquency and crime rates, and even greater success in the labor market down the road.[19] The return on every dollar invested ranged from $1.80 to a whopping $17.07.[20] The studies tended to the largest returns when long term benefits, such as careers and reductions in crime.

The benefits of a strong education system can also have benefits for people other than the individual students. For all of the efforts municipal leaders take to woo businesses with one-time investments or tax breaks, companies often want a trained workforce – something education is crucial to accomplish. That explains why local auto dealers have donated equipment to help with vocational training programs at Arizona high schools.[21] They see it as a way to help increase the number of skilled technicians in the area that they hope to later hire.[22]

More broadly, a report from researchers at Napier University in Edinburgh examined what factors businesses consider when deciding to locate or relocate. They found that some of the most important factors were a well‑educated workforce and low crime rates.[23] On a similar note, the U.S. State Department has put together a list to help its employees decide where to live when they are deployed on tours to new locations. It urges families to consider social networks, career opportunities, and educational opportunities.[24]

This should not come as a surprise. When families and businesses have to make long-term decisions, they look at the fundamentals, not frivolities.

Rather than putting all of a city’s eggs in one basket, the better course is to focus on core issues that have widespread appeal. Nearly everyone wants good schools, safe communities, and robust municipal services. If a city gets these things right, people and businesses will come, and entertainment venues that the community wants will naturally flow from that.

All this goes to prove the wisdom of Lee Brice’s advice on the secret to success: “Don’t outsmart your common sense.”[25]

[Read more…] about Making Cities Work

by on

A Beginner’s Guide to Legislative Drafting

A Beginner’s Guide to Legislative Drafting
By Deborah Beth Medows, Senior Attorney, Division of Legal Affairs, New York State Department of Health[*]

The ability to impact society through well-written legislation is unparalleled. As President Barack Obama stated, “A good compromise, a good piece of legislation, is like a good sentence. Or a good piece of music. Everybody can recognize it. They say, ‘Huh. It works. It makes sense.’”[1]

As a newly admitted attorney, you will need to know how to draft legislation if you choose to work as a legislative attorney. One of my earliest legal experiences occurred after I was appointed as Assistant Counsel to the New York State Legislative Bill Drafting Commission. I found myself drafting for the New York State Assembly and the New York State Senate, and advising on the constitutionality of the proposed legislation. Legislative attorneys may have different roles and state requirements can differ, so you will need to draft within the scope of your role and jurisdictional requirements. However, these are the general lessons that I gleaned from my own experiences.

[Read more…] about A Beginner’s Guide to Legislative Drafting

by on

Welcome, Class of 2019!

Greetings from the Harvard Journal on Legislation! Our names are Nino Monea and Maria Makar and we are the Co-Presidents and Editors-in-Chief of the Journal.

We are writing to welcome you to campus and encourage you to join JOL. As the nation’s premier law review focused on legislative analysis and the legislative process, we have a unique role in shaping public policy. Not only do we publish articles written by law professors and students, we also regularly publish essays by members of Congress and other government officials. These articles are often reported on by the nation’s top newspapers.

The Journal on Legislation is the third-oldest journal at Harvard Law School, first published in 1964. Despite our long history, we seek to innovate in the field of legal academia by promoting shorter, more accessible policy analysis essays written by students, and experimenting with peer-review systems for articles. From your first day with JOL, you can also get involved with one of our committees, which allow you to help select articles for publication, edit online pieces, or plan social events and our annual symposium.

On the social side, we have an executive office suite on the 2nd floor of the WCC, an open door policy, and an abundant supply of snacks for our members. As the only bipartisan policy journal on campus, we are open to all points of view and opinion. If you would like to get involved or have questions, please do not hesitate to reach out to us at amonea@jd17.law.harvard.edu or mmakar@jd17.law.harvard.edu.

Look forward to meeting you!

Nino Monea & Maria Makar
Co-Presidents & Editors-in-Chief
Harvard Journal on Legislation

by on

Social Insecurity: The Case for Totalization With India

Social Insecurity: The Case for Totalization With India

By Josh Craddock, JD ‘18

Death and taxes are inevitable, but at least death does not repeat itself. This maxim bites especially hard under current U.S.-India policy: expat workers pay into both countries’ Social Security systems, but are ineligible for benefits from their nation of employment. As India becomes a prominent player in the global market, international business between the United States and India has been setting new records each year. Last year, U.S.-India trade reached $107 billion, up from $60 billion in 2009.[2] Profitable business between these two countries has never been more promising. But without a change in policy, neither country can realize the full benefits of economic partnership.

In 2015, more than 275,000 Indian nationals were admitted to the United States on temporary worker visas.[3] Indians using H-1B and L-1 visas annually contribute approximately $3 billion to the American Social Security system—contributions from which they cannot receive retirement or disability benefits, and which they cannot repatriate to their home country—in addition to their payments into India’s Social Security system.[4] And this estimate does not include additional contributions made by these workers’ spouses who may be employed, such as those using L-2 visas. Over the past decade, Indian nationals working in the United States have contributed over $27.6 billion to the U.S. Social Security system.[5]

The current dual-taxation system also imposes substantial hardships on Americans working in India. Although no reliable statistics exist on how many Americans are employed in India, the Indian government estimates their contributions to India’s Employees’ Provident Fund Organization (EPFO) was $150 million in 2011.[6] These American expats are likewise unable to repatriate or benefit from their contributions to the Indian system, which amount to 12% of their total annual salary.[7] These contributions must be matched by an equal amount from the American citizen’s employer. Furthermore, when these Americans and their families return home, they may not qualify for retirement, disability, survivorship, or dependency benefits in the United States due to residence requirements for eligibility.[8]

This problem of taxation without benefit eligibility is compounded when one considers that employers are required to match their employees’ Social Security contributions in both countries—a total tax rate of 19.65% of an employee’s salary.[9] Employers that guarantee that an overseas assignment will not decrease their employee’s after-tax income are particularly affected. These employers pay both the employer and the employee Social Security contributions, but this payment is treated as “taxable compensation to the employee, thus increasing the employee’s income tax liability.”[10] The employer will often pay the additional income tax, which creates what the Social Security Administration calls a “pyramid effect” that, depending on the tax rate, can increase the employer’s foreign social security costs to as much as 65-70% of an employee’s salary.[11]

With such high tax rates, even corporations that do not pay the employee contribution may find beginning and maintaining overseas operations prohibitively expensive. Indian corporations may similarly be unable to pay American workers to work in India.

Because of these costs, the existence of a totalization agreement between the United States and another country is a significant factor American companies consider when choosing where to locate a foreign branch.[12] This sort of dual taxation hurts economic growth and may actually reduce tax revenue.[13] In the short term, both countries obtain Social Security revenue from expats who cannot collect on their contributions. But this practice usually deters investment and impedes labor mobility, leading to lower economic activity and tax revenues in the long run.[14]

Developed countries like the United States typically benefit more from totalization agreements than developing countries,[15] but Indian officials believe the agreement would help their nation, as well. They report that the lack of a totalization agreement “increases the cost of hiring Indian nationals,” discourages Indian workers from seeking employment in the United States, and “operates as a market barrier for Indian companies considering entry into the U.S. market.”[16] How many American businesses and entrepreneurs have been discouraged from investing in India, or vice-versa, because of the lack of an agreement to coordinate or “totalize” the two systems?

Currently, the United States has totalization agreements with twenty-five countries, including South Korea, Belgium, Czech Republic, and Japan.[17] India has totalization agreements with nineteen, all but one of which overlap with those with which the United States has signed agreements.[18] The Indian government is keen on signing such an agreement with the United States, yet negotiators have been stuck in a bureaucratic quagmire that has lasted for more than a decade.[19]

The current barrier to enacting such an agreement is the American objection that the two nations’ Social Security systems are incompatible because India’s EPFO does not cover 50% of the nation’s working population—most of which is employed informally.[20] But the United States’ objection is dubious, because both countries have identified practical ways to resolve the differences between their systems. In 2008, a team from the U.S. government met with officials at India’s EPFO to draw parallels between the two systems and to ensure a smooth repatriation system.[21] The joint team’s ensuing report outlined a plan to integrate the two systems if a totalization agreement were eventually passed.[22] In this sense, whether the Indian Social Security system is mandatory for Indian citizens working in India is irrelevant in practice. The pertinent fact is that EPFO contributions are mandatory for American citizens working in India.[23]

In truth, the hold-up likely stems from the United States’ unwillingness to allow repatriation of benefits before workers establish ten years of legal permanent residency.[24] Such a policy excludes the vast majority of Indian workers in the United States who are authorized on visas lasting only five to seven years. The U.S. and Indian governments are not only doubly taxing overseas workers’ social security contributions; they are also taxing workers’ patience with endless negotiations.

American reticence to reduce the residency requirement may be partly due to worries about Social Security’s towering deficit of unfunded liabilities. That deficit—conservatively estimated at $23.1 trillion[26]—would exist with or without the comparatively paltry contributions from Indian workers.[27] Deeper problems with the Social Security deficit will not be solved by taxing Indian workers without providing them benefits or permitting repatriation. The system will not be pushed over the edge into collapse because of a totalization agreement.

Professor Mukul Asher, a public policy expert from the National University of Singapore, suggests a middle ground that would serve both parties.[28] He argues that a totalization agreement created along similar lines as India’s agreement with Belgium would be an effective model for the United States.[29] This type of system would exempt workers from contributing to the Social Security system in the country where they are employed for their first five years, and allow them to repatriate any benefits that accrue after that time. India has recently signed similar totalization agreements with Canada and Australia.[30]

Overcoming American hesitation about an Indian totalization agreement is a key step to creating economic growth. Congress should authorize a congressional-executive agreement to end the negotiation and immediately conclude a totalization agreement with India. Rep. Engel’s proposal for requiring the Secretary of State to provide Congress with updates on totalization negotiations is a good first step.[31] Encouraging American businesses to expand to India could bring profits back home, while encouraging Indian businesses to open branches in the United States could create jobs in America. By increasing the profitability and competitive position of companies that adapt to the globalizing workforce, we can cultivate the full potential of the U.S.-Indian business partnership.
[Read more…] about Social Insecurity: The Case for Totalization With India