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.