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.