While that might seem to be a click bait headline, I actually do not believe it is. Let show this sharing a story.
Identifying a WikiPedia Problem
I recently had to update the Wikipedia page for “public accommodation” to say that, no, churches are not public accommodations which are barred from discrimination based on the Civil Rights Act and the ADA.
This may be just the normal craziness that somewhat regularly haunts Wikipedia: a source which everyone goes to for information, yet can be edited by anyone who goes there. But I think it’s something more.
Here is what I saw when I visited:
Did you catch that?
“Under United States federal law, public accommodations must be accessible to the handicapped and may not discriminate on the basis of ‘race, color, religion, or national origin.’ Private clubs were specifically exempted under federal law, but not religious organizations.”
Not religious organizations? Um…. what? And there it is again below….
“On the other hand, religious organizations were not specifically exempted by federal public accommodation law, but several state statutes on public accommodation include such exemptions.”
It should be abundantly clear why a religious organization should, in fact MUST, be exempt from a law preventing discrimination based on hiring. The religious organization’s existence depends on discrimination based on religion. Want to be a Catholic priest? Good. Step 1: Be Catholic.
In any other hiring situation but a religious organization, whether the CEO of a Fortune 500 company, or the janitor of a school, this would be outright discrimination. But for obvious reasons, this standard cannot apply to churches. Saying that a church cannot discriminate based on religion (or, for reasons of logical consistency, race, color, and national origin, too) due to a civil rights act is like saying that the ADA prevents professional sports teams from discrimination based on athletic ability. It just doesn’t work. You will eliminate the thing being regulated.
There are a million ways the dynamic of religious organization discrimination could play out in practice. If any semblance of a separation of church and state is to be preserved, an anti-discrimination law cannot apply to churches. That’s why laws granting access to public accommodations, from the Civil Rights Act to the Americans With Disabilities Act, always create legal exceptions for churches and organizations run by churches.
For example, the Civil Rights Act title VII, the equality in hiring provision, has its exception (among others) right at the beginning in 42 USC § 2000e-1, paragraph (a).
This title shall not apply . . . to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
The Americans with Disabilities Act has its exemption in section 12187.
The provisions of this subchapter shall not apply to private clubs or establishments exempted from coverage under title II of the Civil Rights Act of 1964 (42 U.S.C. 2000-a(e)) or to religious organizations or entities controlled by religious organizations, including places of worship.
The incorrectness of that entry was one thing, but the citations for this were equally strange. For instance, in the footnote that stated that the Civil Rights Act did not exempt churches, the text stated “Churches were not mentioned in Title II” as an explanation. Well, yes, but that’s because Title II of the Civil Rights Act is limited to what is listed in 42 U.S.C § 2000a, and churches are not mentioned. That provision only applies to:
- any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than [when someone rents less than six rooms out of their own home].
- any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises, including any such facility located on the premises of any retail establishment,
- any gasoline station;any place of exhibition or entertainment, including motion picture houses, theaters, concert halls, sports arenas, and stadiums
- any establishment which is physically located within one of the previously listed places, or any establishment which has one of those previously listed places located within it.
The absence of “churches” and religious establishments was not the absence of an exception. It IS the exception. That’s why I left the same footnote in my updated Wikipedia edit. Using the same source, I proved the opposite conclusion. The source of this mismatch was either an extremely stupid Wikipedia contributor, or a moderately nefarious one.
The Telling Citation
And yes, I suspect it was a nefarious one. Despite bad citations, and a lack of legal understanding, there was one citation that did – sort of – support the idea that public accommodation laws did not exempt religious organizations. That citation was this law review article written by Martha Minow which tried to solve the conflict between expanding same-sex marriage rights and the beliefs of religious organizations. In short, the argument is questionable, but at least it is coherent.
The article contends that religious organizaitons should not be given outright exemptions from Civil Rights Laws, laws expanding benefits to same-sex couples, and other laws (as they currently do). Instead, religious organizations should have exemptions based on “virtue ethics and value-added negotiation.” As for what value added negotiation is, it’s better when the church and state get together and negotiate a solution together, rather than do battle in the public sphere.
That might be a good thought to avoid confrontation. But once an issue has been raised, negotiations are fair when one side, the government, has all the power and the other side, private religious actors, have… …well… …none. I think we know how those negotiations actually play out in real life. (If you’re confused about how to interpret that the video analogy, here’s a hint: the dragon is Obergefell v. Hodges.)
As for the article’s explanation of virtue ethics, she speaks of flexibility, compromise, and respect, and says,
A bit more respect, flexibility, and humility on all sides in the clash between religious groups and advocates for rights for gays, lesbians, and trans-gendered people could open possibilities for resolutions that accommodate civil rights norms and religious principles. . . . These virtues centrally express the commitment to acknowledge the humanity of another, even another with whom you disagree or whom you do not think you will ever fully comprehend. It is not self-defeating, but instead a sign of robust commitment to give latitude for those whose views you reject in order to advance a larger commitment to freedom and coexistence.
Which sounds nice, although it’s heavy on the cotton-candy and rainbows. Plus, it assumes that religious organizations have a “larger commitment to freedom and coexistence” instead of their actual commitments, like “to present the Gospel of Jesus Christ to every person in the world and to make disciples of all the nations.” Problems arise when a “neutral” arbitrator thinks two groups have overarching values in common, when in fact, they have completely different overarching values.
I could go on, but this digression has gone too far.
The point is, this was a law review article proposing a way that things SHOULD be, which was used to establish how the things ACTUALLY ARE. And the citation that falsely tried to move the marker of reality was one that argued for greater recognition of LGBT rights and benefits against religious exemptions.
How coincidental it is that the crazy Wikipedia contributor who couldn’t understand or cite current law about civil rights used a pro-LGBT rights citation to push that lie.
Oh…. but that’s just background. Here’s the real issue.
Identifying a Real Problem
The important thing is not that I had to correct a Wikipedia page. If me correcting something on the internet was a real problem, then boy do we have problems. The important thing is the reason I was looking at the “public accommodations” page on Wikipedia in the first place.
Loss of Religious Rights in Iowa
The real problem is that the Iowa Civil Rights Commission is now trying to regulate speech and practice in churches.
Yes, really. Luckily, Alliance Defending Freedom has filed suit to prevent enforcement. Thank God for organizations that buck trends.
On this, I don’t even have to give any slippery slope explanations of how bad this is. It’s published in black and white. The Iowa Civil Rights Commission state government commission produced a document to explain how Transgender norms must be given deference over church words and practice in Orwellian guidance document: “A Public Accommodations Provider’s Guide to Iowa Law.”
Such helpful Orwellian Q&As include.
DOES THE LAW PROHIBIT GENDER – SEGREGATED RESTROOMS?
No. It is still legal in Iowa for businesses to maintain gender-segregated restrooms. The new law does require, however, that individuals are permitted to access those restrooms in accordance with their gender identity, rather than their assigned sex at birth. And, just as non-transgender individuals are entitled to use a restroom appropriate to their gender identity without having to provide documentation or respond to invasive requests, transgender individuals must also be allowed to use a gender-identity appropriate restroom without being harassed or questioned.
So in other words, when we say “No,” what we really mean is “Yes,” because while we mean one thing when we say “boy and girl” and you mean a completely different thing when you say “boy and girl,” our way has the force of law.
Here’s another good one:
DOES THIS LAW APPLY TO CHURCHES?
Sometimes. Iowa law provides that these protections do not apply to religious institutions with respect to any religion-based qualifications when such qualifications are related to a bona fide religious purpose. Where qualifications are not related to a bona fide religious purpose, churches are still subject to the law’s provisions. (e.g. a child care facility operated at a church or a church service open to the public).
So in other words, when we say “Sometimes,” what we mean is “Always.” Because as soon as your church service is open to the public, it becomes a public accommodation. Since the modus operandi of all churches at all times has been to open their doors to everyone, even when it is very dangerous and even when the guest is there to kill everyone inside, it seems that all churches strangely are not “bona fide religious.” In other words, yes, all churches are regulated as public accommodations.
What exactly is regulated? Well I’m glad you asked. The handout has the answer.
WHAT TYPES OF ACTIONS COULD BE ILLEGAL HARASSMENT?
*Harassment includes, but is not limited to:
*verbal, physical, or written conduct,
*conduct of a sexually inappropriate nature,
*physical or psychological abuse,
*repeated remarks of a demeaning nature,
*implied or explicit threats,
*demeaning jokes, stories, or activities, and
*intentional use of names and pronouns inconsistent with a person’s presented gender.
Yes. You read that correctly. It is now illegal for a pastor, church employee, or church volunteer (after all, they are still an agent of the church) in Iowa to intentionally say “he” when referring to a boy who identifies as a girl, EVEN IF the church teaches that boys will be boys despite any outward appearance or inward identity.
And don’t even think about making him go into the boys bathroom. That’s flat out illegal.
Oh, and if any of you private citizen activists see something you don’t like, let’s go back to the Orwellian handout for the conclusion…..
You may file a complaint with the ICRC within 300 days of the alleged discriminatory incident. Call (515) 281-4121, or for more information on discrimination in public accommodations, housing, education, credit, or employment, see our website at: http://www.state.ia.us/government/crc.
So yes, if you live in Iowa, your church is regulated. Sorry, denim-skirt wearing Pentecostals. Sorry, independent baptist churches where all the families homeschool their children. If Stacy-Pizzaz the drag queen wants to volunteer to sing up front at the big tent revival, and the pastor refuses to let him do so because he’s a drag queen, Stacy-Pizzaz would have a viable complaint against that organization through the Iowa Civil Rights Commission. After all, isn’t everyone usually allowed to volunteer to sing up front with the band at the revival? Isn’t that an advantage, service, or privilege that is open to everyone else? Doesn’t the helpful document that the Iowa Civil Rights Commission provided say that this is a violation of equal access in public accommodations, which includes churches?
Maybe after a costly litigation process, the commission can find you innocent. But that too is a scary proposition, not only because of how costly litigation is, but because of how easy it is to violate the rules. Note that the previous paragraph in this very piece skirts the guidelines, because it intentionally refers to Stacy-Pizzaz as “him.” Luckily, I’m not writing this in the sanctuary of an Iowa church. (Whew!)
It might seem far-fetched to think that a drag-queen stage-named Stacy-Pizzaz would want to sing at a rural denim-skirt Pentecostal big tent revival. But it’s actually not that far fetched. It’s no more far fetched than a gay couple specifically picking out a denim skirt wearing Pentecostal county clerk to solemnize their marriage.
That’s because these things you read about don’t happen by chance. They happen by choice, to push a point. Even Kim Davis (also an Pentecostal) of nationwide fame, would never have even had the controversy that landed her in jail had not the people first read online that she opposed same sex marriage, and then entered the courtroom with a video-camera to challenge her. It is not difficult to imagine a Stacy-Pizzaz situation at all.
The Scary Discovery
This outrageous overstep by a state government commission is one thing, but the really frightening thing is this: This is not an outrageous overstep by a government commission.
In fact, this is a clear and straightforward enforcement of an an actual law, Title VI of the Iowa Code, Chapter 216. It was an amendment that was passed in 2007, which added sexual orientation to existing civil rights laws. It defines unfair practices as follows.
216.7 UNFAIR PRACTICES — ACCOMMODATIONS OR SERVICES.
1. It shall be an unfair or discriminatory practice for … any public accommodation or any agent or employee thereof:
a. To refuse or deny to any person because of race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability the accommodations, advantages, facilities, services, or privileges thereof, or otherwise to discriminate against any person because of race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability in the furnishing of such accommodations, advantages, facilities, services, or privileges.
b. To directly or indirectly advertise or in any other manner indicate or publicize that the patronage of persons of any particular race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability is unwelcome, objectionable, not acceptable, or not solicited.
2. This section shall not apply to:
a. Any bona fide religious institution with respect to any qualifications the institution may impose based on religion, sexual orientation, or gender identity when such qualifications are related to a bona fide religious purpose.
If you are looking at number 2, I’m sorry to say that this is a fairly weak protection. You are only given protection if you are a “bona fide religious institution” (a term not defined in the chapter) and you have a “bona fide religious purpose” (a term once again not defined in the chapter). If you don’t meet that standard (for example, you open your doors to the public), you are regulated just like all public accommodations, with no exceptions.
And as opposed to the handout what is a public accommodation in the law?
“Public accommodation” means each and every place, establishment, or facility of whatever kind, nature, or class that caters or offers services, facilities, or goods for a fee or charge to nonmembers of any organization or association utilizing the place, establishment, or facility, provided that any place, establishment, or facility that caters or offers services, facilities, or goods to the nonmembers gratuitously shall be deemed a public accommodation if the accommodation receives governmental support or subsidy. Public accommodation shall not mean any bona fide private club or other place, establishment, or facility which is by its nature distinctly private, except when such distinctly private place, establishment, or facility caters or offers services, facilities, or goods to the nonmembers for fee or charge or gratuitously, it shall be deemed a public accommodation during such period.
So let me break that down.
If sell anything, you are a public accommodation. Does your church sell any goods, facilities, or services? That takes out all churches with schools. That takes out all churches with bookstores. That takes out all churches that charge a fee to rent the facility for a wedding. By the law’s text, any church that does that IS a public accommodation. And depending on how a judge interprets the word “service,” it could include things that are a part of the actual mission of the church like…. you know…. opening your doors to the world.
If you are a private club, you are not a public accommodation, but this is not as wide as it looks. You must be distinctly private. If non-members can get married in your church, you are not a private club. If non-Catholics can attend you catholic school, you are not a private club. And, as the Orwellian publication reminded us, if you open your church doors to the public, you are not a private club.
Under the Iowa law’s definition, every church I have ever attended in my entire 30 year Christian life, except those that met in private homes, has been a Public Accommodation which is regulated.
Well….. that clears things up. (gulp).
This is Not An Accident
It is also frightening that this is not at all some misunderstood mix-up of law, which has an unintended effect on churches that don’t buy into every new faucet of the sexual revolution.
This law was heralded as wonderful by liberal groups like the ACLU. It serves as a model for other states, and for the federal government action, too. And yes, there are massive campaigns to make non-discrimination laws apply to all categories of sexual orientation at the federal level, too.
The Overarching Situation
“He who controls the past controls the future. He who controls the present controls the past.”
And now I’d like to connect my Wikipedia problem with the Iowa problem. The connection is the fundamental dishonesty of the LGBT rights movement.
Let me illustrate this overarching problem with the situation I have already described above. First, I saw a terrible enforcement document that explicitly regulates what pastors in churches can say through a public accommodation anti-discrimination statute. That seems bad, so to wrap my head around the situation, I go to Wikipedia. (Doesn’t everyone?) But there, I find a lie, “churches have always been public accommodations,” propelled by an ill-informed pro-LGBT advocacy law review article, posted by an anonymous source.
Had I not been an attorney somewhat familiar with public accommodations and religious liberty, I would not have known to question this Wikipedia entry. Thanks to the free-flowing nature of information on the internet, it is easy to spread bad information. It doesn’t take any time to wrongly use a citation to push your agenda.
There is a fundamental dishonesty of the LGBT rights movement, and combined with the easy way that lies spread, this tilts the playing field in its favor. Lies are easily start and difficult to retract. The casual observer will not be able to tell what is the truth and what is not. Traditional conservatives and Christians will always play costly defense. But rather than play defense against a new discovery or novel argument, social conservatives play defense against outright falsehoods.
For example: The gay gene is real! Except that it isn’t. Sex is biology and gender is socially constructed (in 2011, at least). Now, even sex is assigned at birth (because some take offense). Gay marriage will not lead to polygamy, (this was the argument before gay marriage was legal). Now, maybe it is time to give polygamy a chance (and the courts seem to agree). It was offensive for Scalia to say that legalizing homosexuality will lead to incest, but then people started doing it anyway, proving him right (but we’ll still demonize him, anyway). Sexual orientation is just like race, except when it’s not (because logically consistent or not, that would look awkward to argue in the public sphere).
This is just the way it is. If you haven’t picked up on this dishonest and/or hypocritical flood, you are either not looking or you’re being swept away by the wave. The LGBT movement has decided to model itself after the Civil Rights Movement of the 1960s, commandeering the status of moral hero on themselves and projecting the status of moral villian on those who stand in their way, whether that is true or not. It doesn’t help that the Iowa Civil Rights Law that enforces transgender ideology in churches is still called “the Iowa Civil Rights Act of 1965.”
Is a civil rights comparison between the 1960s and the LGBT movement true, accurate, or fair? Who cares. It is useful. With social justice internet preachers, LGBT revisionist digital librarians, and a public consciousness with the memory of a goldfish with ADHD, it is very useful indeed.
Why bother changing the public opinion, when you can instead convince people that this is the way it has always been? People who are fighting for and against the expansion of rights now are the same people who have always been fighting for and against the expansion of rights for anyone. Right?
“Oceania was at war with Eurasia: therefore Oceania had always been at war with Eurasia. “
Rod Dreher is a brilliant man, downright prophetic. He often blogs on what he calls the “Law of Merited Impossibility.” You should check it out. It is a description of the way that those who advocate for gay rights confront religious liberty concerns.
In essence, the Law says “It’s a complete absurdity to believe that Christians will suffer a single thing from the expansion of gay rights, and boy, do they deserve what they’re going to get.” In other words, first LGBT advocates deny that anything bad will happen from the expansion of LGBT rights. Second, after bad things do happen from the expansion of LGBT rights, they claim that such things are deserved.
It is absolutely impossible that churches will be punished for what they preach. But once it happens, you bigots will deserve it, because you’re racist. This is the way it has always been. You’re the same people who were standing in the schoolhouse door.
A prophetic question of Justice Alito to Solicitor General Verrilli in the Obergafell oral argument exposes the risk, clearly known, and now being seen.
JUSTICE ALITO: Well in the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?
General Verrilli: You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I — I don’t deny that. I don’t deny that, Justice Alito. It is — it is going to be an issue.
Get ready. This is the new normal.
One Comment Add yours
I don’t know how I got here but here I am. I’m a (French) Canadian and my knowledge of the USA’s law is not extensive. I’m gay and definitely more a liberal than a conservative. I read your post with attention and I believe you’re a bright young man. I also believe you have the right qualities to be a lawyer. What I mean by that is you have a high capacity of reason, you have a knowledge of the grey areas that can lead to interpretation and you seem capable to use those grey areas to pull the covers your way and leave as little as possible to the other side within the limits of what is acceptable. You know and have the ability to take whatever can be interpreted to spin it to your advantage and to conform it to your ideals and beliefs. That might be what is required by the job but is it ethical and moral? Is it moral and ethical to defend oppressing groups on the grounds Churches and other religious organisations have special privileges protected by law? Is it moral and ethical to allow discrimination on grounds that religious organisations are supposedly the moral and ethical norm? Isn’t in the principle of the law to evolve in the light of how things and reality change? For a job that requires to wade in the grey areas, everything seems pretty black and white in the way you express it. For many of the references you brought up to pass your arguments as facts, I could have found some that state the opposite. You seem to forget reality is not fixed, objectivity doesn’t exist and we’re emotional beings that interpret things differently from our experiences in life and our cultural and familial backgrounds. Maybe you should take that into account next time you take on a group that has been persecuted (and still is) since forever and defend another one that has had privileges on their side for centuries. Asking religious groups or religious people to respect the reality of others when it doesn’t pose any risks, besides shocking repressive ideals, is simple decency and should be backed by law, anything else is tyranny. Equality to the privileged will always seem like an attack on their liberty. Welcome to equality!