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Massachusetts follows Iowa

First it was Iowa (see here and here); now it's Massachusetts. It almost seems like these anti-discrimination commissions are reading from the same playbook.

Massachusetts's Commission Against Discrimination has issued new guidance on new anti-discrimination laws, and it explicitly includes churches. The relevant sentence is,

Even 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.

Sound familiar? Yep, it's very much like the revised language (see here) that the Iowa anti-discrimination commission wrote. Originally, the Iowa commission had said that the force of non-discrimination law applied to churches if they had a "church service open to the public," which provoked howls of derision and pointed (and legitimate) comments about censored sermons. It also provoked a couple of lawsuits. Iowa's commission then revised their pamphlet to say that the application of the law was only to "non-religious activities which are open to the public." The wording in the Massachusetts guidance is similar. The examples given in the Iowa revised pamphlet are "an independent day care or polling place located on the premises of the place of worship." The example in the Massachusetts guidelines of a "secular event" is a spaghetti supper.

I can't help noting that there is the faint conversational implicature in the Massachusetts quotation that it is the fact of being "open to the general public" that makes an event a "secular event," even though no church would view it that way. Churches urge you to bring your friends to evangelistic meetings, for example, all the time, but these are certainly not "secular events."

Aside from that, the fact remains that the commission is according to itself the authority to decide which activities of churches are or aren't secular. An event (a lecture, for example) might well be deemed secular even if it was expressly addressed to the issues on which the commission wants to stifle dissent. Suppose, for example, that a church brings in someone to give a lecture on the harms of the homosexual and transgender agenda. Naturally, the public would be invited. But it would be ludicrous to hold that, at such an event, the staff and even members of the church must use pronouns for "transgender individuals" of those individuals' choosing and that the bathrooms must be made open to anyone to use who wishes. Indeed, the very existence of such a lecture might be regarded as "harassment" in a "place of public accommodation," I would think, which raises interesting First Amendment questions.

Eugene Volokh is a lawyer with a slightly libertarian bent and an eagle eye for creeping totalitarianism in law. He has been saying for a while that "hostile environment" regulations are in tension with, if not at odds with, First Amendment protections on speech, because they sometimes require businessmen and employers to monitor and restrict the speech of private individuals as a matter of law. Here is a good article by Volokh on that subject, apropos of a racial "harassment" case in which the EEOC is going to decide whether an employer must forbid an employee to wear the "Don't Tread On Me" insignia. Here is a follow-up in which Volokh points out further ways in which "hostile environment" investigations potentially micromanage many specific aspects of individuals' speech in the workplace.

I've been saying this for a long time, independently, about "hostile environment" claims and the First Amendment, so it's soberly satisfying to find an eminent First Amendment lawyer agreeing with me. Unfortunately, the upshot seems to be that civil rights commissions are more or less saying, "The heck with the First Amendment," and so far, getting away with it.

Volokh's discussion of the Massachusetts guidance on sexual matters is thorough and equally sobering. As he points out, since those who run public accommodations are even supposed to prevent their "clients" (that is, other customers) from creating a "hostile environment" for members of protected classes, a church that holds an event deemed secular could even be held liable for insensitive comments by anyone attending the event, even if not an agent of the church. But agents of the church would quite naturally be involved anyway in applying the church's standards of conduct. A pastor or volunteer agent of the church would naturally be the one preventing men from using the women's bathroom at a spaghetti supper or music concert held at a church. The agent of the venue is the only one who actually has authority to explain the rules of the house. And it goes without saying that pastors and other agents of the church, or those presenting at lectures or events, should not have to censor their speech lest they create a "hostile environment" to homosexual or transgender attendees.

Indeed, I want to go back to the whole question of what is said from the stage at a "place of public accommodation." Why should it even matter whether this "place of public accommodation" is a church or not? If we have any protection on freedom of speech at all in this country, a purely secular organization--a university, a political group, etc.--should be able to invite a speaker to a purely secular location--a hotel, a lecture hall, etc.--to give a lecture explicitly stating that homosexual acts are perverse, that discrimination against homosexuals, especially active and proud homosexuals, is often justified, and that transgenders are psychologically disturbed individuals whose confusion we should not enable. But what do these Massachusetts guidelines, or in general the concept of "hostile environment" coupled with non-discrimination law applied to sexual orientation and gender identity, mean for such speeches?

While we are rightly worrying about this express attempt to regulate religious activities and speech at houses of worship, we should also spare a thought to wonder if there is an implication that, if a place of public accommodation is unambiguously non-religious, nobody can speak out there against the homosexual or transgender agenda!

In any event, a lawsuit is obviously needed in Massachusetts on behalf of some churches, similar to the lawsuit going forward in Iowa, despite the revision of the Iowa pamphlet. I know the ADF is overworked and underpaid, but I think they or a similar pro bono law firm should get right on this as they did in Iowa.

Comments (10)

I am surprised at how little attention this has gotten so far. Not sure what to make of that, seemed like the Iowa issue was taken more seriously. Now that it is happened in another state it appears to be a real trend and not a one off mistake of overzealous civil rights commissioners. Anyway, do you think this is a indication that things are going in the direction of any place that is open to the public being declared a public accommodations full stop? With no exceptions whatsoever. I can see it now, the cries now about what if a transgender person has to make an emergency bathroom stop at a country church on a road trip, or some other silly fear. Basically the bathroom version of the argument that bakers must make special cakes to celebrate homosexual conduct because if there is a small town baker that wont then maybe two people wanting to celebrate their homosexual conduct might have to drive to a different town or make their own cake.

This also happens to be a not so transparent attempt to limit church outreach efforts, even on church property. This particularly ironic in light of transgender outreach efforts on *public* property in San Francisco (http://www.theamericanconservative.com/dreher/romper-room-for-liberals/). Go figure.

They ARE reading from the same playbook because they are taking their cues from the same homosexual activist/lobbyists.

Anyway, do you think this is a indication that things are going in the direction of any place that is open to the public being declared a public accommodations full stop?

I think that is what they would like. One place that I think we may be already past is this: If you work at an educational institution that is not distinctively religious, you cannot speak to your classes in any way that is critical of the homosexual or transgender agenda, and *not merely* because the school itself is totally politically leftist but *also* because the school will say it has to suppress such lectures in the name of not committing "harassment" against "sexual minorities." I really think we may well be past that point. I can't help thinking that if a teacher at a public high school or even secular college said things that are contrary to the homosexual movement such a person would be fired and that the school would cite its obligation to fulfill government requirements as the reason.

Now, we've become so inured to that idea so quickly that I suspect some of my readers are saying, "Duh, of course."

But that's a big change even from twenty years ago, and it's _highly_ questionable from a First Amendment jurisprudence point of view, especially in the context of a university that takes federal funds. FIRE would say that that should _protect_ freedom of speech, not inhibit it, and there are indeed precedents to that effect. Whether they will stand is a different question.

In the post I raise the question of whether, say, a hotel or public auditorium could be sued for allowing its venue to be used for a politically disfavored lecture open to the public. But if that were the case, then we have really thrown the First Amendment out the window entirely and the government is just censoring politically disfavored speech, period, full stop. And that's even *before* we start discussing religious liberty issues. But I have this weird feeling that, by jumping ahead and attacking the churches, the LGBT warriors are actually banking on our leaving the non-churches in the dust. "Okay, okay, you can ban speech and micromanage all speech in every non-religious venue. We'll just try to hold the line on the religious venues." But numerous precedents should make it impossible to do even the first of these, much less the second.

Modernism/secularism always get their actions from the same playbook. It's a "centralized" movement.

Are you hinting at the very real time that Ryan T Anderson was barred from speaking at a hotel in, I believe, Bermuda? Granted that is UK territory, but I doubt current US "anti-discrimination" law would be interpreted by most judges to mean that US hotels could not do the same. I don't recall any left/progressive/lgbt activist coming to their defense. Freedom for all in that situation was fine with them.

"In the post I raise the question of whether, say, a hotel or public auditorium could be sued for allowing its venue to be used for a politically disfavored lecture open to the public. But if that were the case, then we have really thrown the First Amendment out the window entirely and the government is just censoring politically disfavored speech, period, full stop. And that's even *before* we start discussing religious liberty issues. But I have this weird feeling that, by jumping ahead and attacking the churches, the LGBT warriors are actually banking on our leaving the non-churches in the dust. "Okay, okay, you can ban speech and micromanage all speech in every non-religious venue. We'll just try to hold the line on the religious venues." But numerous precedents should make it impossible to do even the first of these, much less the second."

Wow, it really does look that way doesn't it? It seems like they are angling to have any speech or policies they deem offensive to lgbt identifying people made illegal or even criminal outside of homes and private clubs. This law would basically force churches to become private, members only clubs that are not open to people wandering in off the street. This is, if I recall correctly, Judge Alito's Obergefell dissent coming to life. Where he mentioned these things being only free to be thought privately and whispered in private spaces. I wonder to what extent comment's like that in dissent's are not aimed at conversations that happened between court members. Basically as hints at what other justices believe and want to happen.

Are you hinting at the very real time that Ryan T Anderson was barred from speaking at a hotel in, I believe, Bermuda

No, I didn't know about that. I also don't know whether the hotel claimed it was doing it because of its own "standards," because of security concerns, or because it was required to do so by non-discrimination law.

but I doubt current US "anti-discrimination" law would be interpreted by most judges to mean that US hotels could not do the same.

Since the hotel is a private entity, that's not necessarily a problem. I don't want the hotel *forced* to host the speech. The problem is whether the hotel would be, or would think it was, *required* by the government to *refuse* to host the speech.

And the "would think it was" is important. If the local big auditorium in my town thinks, or says it thinks, that it isn't allowed to host a speech that would create a "hostile environment" for homosexuals or transgenders, there's not a lot the speaker can do about it to clarify that point. After all, political viewpoints are not protected by discrimination law anyway, as it applies to private entities, so the speaker wouldn't have standing to sue the venue even if the venue refused to host the event just because it felt like it. This is because the venue is regarded in the case we're envisaging here as a private entity, not as an arm of the state. (See example below concerning a state university.) No judge is required to give an opinion on whether the venue *would* have been open to suit if it had hosted the speech. The only way to get a test case would be for a venue to go ahead and host the speech, for the venue to have a discrimination complaint made on the grounds of the content of the speech, and to see what happened in the ensuing legal case. But why would a venue put itself through that if it *sincerely* believed it would happen? They're just an auditorium. They have no stake in defending free speech in this area. And if the venue owners really were just opposed to the speech but for some reason wanted to look all holy and neutral, they could use fear of lawsuit as a convenient cover, and no one could do a thing about it.

A more likely test case or partial test case (because it would have unique features) would be for a publicly funded university to refuse to host a speech and to give this rationale for it--namely, that they were required to refuse by non-discrimination law.

Now, the courts have sometimes ruled that a state university is itself an arm of the state. Hence, the distinction between "we just wanted to refuse to host this" and "we were required to refuse to host this" becomes fuzzier anyway, and the person whose speech was squelched may have standing to sue on First Amendment grounds. In the ensuing case, an interpretation might be given as to whether the university's excuse (that they were required by non-discrimination law to turn away the speech) would hold water.

I don't want them forced either. They should have the same freedom wedding venue operators *should* have but don't. My hunch is we are at least at the point where, if the hotel did allow the speech or event, that an LGBT discrimination lawsuit filed against them would at least be taken very seriously. As opposed to laughed out as completely frivolous from the get go.

A few other things here that are akin to the possibility that by jumping to make churches defend free speech when it comes to anything disliked by LGBT identifying persons it may cede it everywhere else. The idea that if a church hosts some "secular" or even government activity, such as polling place, that government rules then apply does not make sense. Yet we are just supposed to accept that that is how it already is and should be. No one thinks that if a person hosts a wedding or baby shower at the larger house of a friend or family that the hosts rules do and should supercede the homeowner's. I don't see how this is any different.

Also, if I understand it correctly, using the "wrong" pronoun at the "wrong" time even once could be illegal/criminal harassment. Even if the interaction was initiated or instigated by the person claiming to have been harassed. In any other context, I would think, harassment would need to involve repeated, on-going unwanted advances. The person who is harassing would be the one initiating the interaction and would be the one continuing to initiate the interaction the other has made clear they do not want.

Also, if I understand it correctly, using the "wrong" pronoun at the "wrong" time even once could be illegal/criminal harassment. Even if the interaction was initiated or instigated by the person claiming to have been harassed. In any other context, I would think, harassment would need to involve repeated, on-going unwanted advances. The person who is harassing would be the one initiating the interaction and would be the one continuing to initiate the interaction the other has made clear they do not want.

Because harassment is a fairly vague category, the (usually unelected) commissions are given enormous power to decide everything on a case-by-case basis. They still sometimes try to maintain a pretense that they are looking for a _pattern_ of harassment or discrimination, but there is nothing that strictly requires them to do so. The wedding cake bakers, for example, have been ruined for a single incident. Certainly employers interpret the regulations to mean that a single incident, if the employer did not punish it, could render them liable to suit and or fine. And, yes, this can be initiated by the person demanding "rights." A good example of such an interpretation (though it never was hashed out in any court) was a case I highlighted here some years ago: A man named Peter Vadala was working for a retailer in Massachusetts. I believe a clothes store. His supervisor kept saying over and over again that she was "marrying" her girlfriend during the upcoming weekend. She kept saying it *to* Vadala, trying to pressure him to make some response. Eventually he told her that he believed that the homosexual lifestyle was harmful. She then began laughing at him and saying, "HR, buddy, HR," and he was fired forthwith, the employer piously claiming that it was required to fire him in order to comply with non-discrimination statutes!

Now, it should have been obvious that it was *she* who was harassing *him*. Indeed, probably doing so because she knew he was a Christian--and religion is a protected class under law as well. If anyone had a claim for a hostile work environment, it was Vadala, especially since the person pressing him by making these pointed comments repeatedly was his supervisor! But instead he was the one who was fired.

And this happened in 2009!

http://www.whatswrongwiththeworld.net/2009/11/speak_now_or_forever_hold_your.html

The vagueness of what counts as harassment seems to just incentivize people to follow their worst impulses and sows distrust. I would think a church pastor, leader, or even congregant may consider just ignoring anyone who might identify as LGBT to the point of acting like they are not there just to be sure they don't accidentally say anything that is "harassment". Even if that person appears to be under distress or is openly seeking help. On the flip side, someone who identifies as LGBT has big incentive to try to get "harassed" or "discriminated" against. I would assume there are big dollars attached if they win, and nothing to lose if they do not. The possibility of getting a Pastor jailed may even count as additional incentive.

It's too bad Valdala did not pursue a discrimination case. In 2009 he may have had a chance, and that could have set a Hosanna-Tabor like precedent. Not that I expect that to last, but these type of precedents do at least buy time. The only case I'm aware of in the present that may be a test case for this is the Kelvin Cochran case. I believe the Atlanta city officials expressed concerns they could be vulnerable to "discrimination" lawsuits from LGBT identifying fire department employees.

In 2009 he may have had a chance, and that could have set a Hosanna-Tabor like precedent.

I think it would have highlighted the conflict between anti-discrimination law on the basis of sexual orientation and anti-discrimination law on the basis of religion. What would have happened, who knows? It would have had to do with _state_ law, so prob. wouldn't have gone to SCOTUS.

There really is a conflict between non-discrimination on the basis of religion and non-discrimination on the basis of sexual orientation, at least when you put the extremely broad interpretation of "hostile work environment" into the mix.

A homosexual person can deliberately target someone he knows to be a Christian with comments about his gayness, about "marrying" his partner, and so forth. This is classic hostile work environment behavior--deliberate comments directed at a person due to his perceived membership in a protected class and intended to make him uncomfortable.

But if the homosexual person _also_ belongs to a protected class, and if his homosexual _behavior_ is deemed an inevitable outworking of his membership in that class (as various courts around the country have ruled), then to tell him that he cannot allude to his homosexual behavior in water cooler conversation is to create a hostile work environment for _him_ based on _his_ protected class status!

So either the homosexual has to put up with an environment to some degree hostile to his protected class status or the Christian has to put up with an environment hostile to his protected class status.

The only way this wouldn't happen is if everybody just wanted to talk about football all the time and these topics never happened to come up.

Broadly speaking. (I'm deliberately exaggerating to some extent, but you get the gist.)

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