A complaint and a motion for preliminary injunction were filed on October 10 by several churches against the state of Massachusetts. The motion seeks a preliminary injunction preventing enforcement of the new Massachusetts Facility Use law against religious entities. The case is called Horizon Christian Fellowship v.Williamson, et al. The motion for preliminary injunction can be found here: horizon-motion-for-preliminary-injunction  The complaint can be found here: horizon-complaint  This case presents a wonderful opportunity for compromise between the parties and an opportunity to engage in discourse and bridge building. It does raise, however, several very important questions.

The Massachusetts Law in Question, MGL Chapter 272, §92A and §98, is a great example of a thoughtful law designed to protect transgendered individuals from discrimination. Yet, the Gender Identity Guidance issued by the Massachusetts Commission Against Discrimination (MCAD) under the law, and an opinion issued by the State Attorney General, take what is otherwise a good law and render it constitutionally problematic by applying it to churches and other religious institutions.

The Guidance, which can be found here: gender-identity-guidance, states on page 4: “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.”

The problems with this excerpt are significant. It makes an assumption that the religious functions of a religious entity are limited only to religious services. Of course, for many faiths every activity has religious import, and for many activities such as feeding the hungry and bringing the community together are more important than worship services. Either way, the longstanding Ecclesiastical Abstention Doctrine, which I discuss in Freedom’s Edge, and the Doctrine of Church Autonomy which is based in part on the Ecclesiastical Abstention Doctrine, prevent government from deciding what is important to a religion and what a given religion’s theology demands. These doctrines also prevent government interference in core religious functions and decisions.

I think this is an opportunity for bridge building. Whatever the churches think about the Massachusetts law as applied to the rest of society, the state can compromise here and settle the case by amending the legislation (and the Guidance) to include an exception for traditional religious entities such as houses of worship. Massachusetts could then enforce the law in all other contexts, including against for-profit entities that claim religious exemptions to the law. The reasons for this distinction between traditional religious entities and for-profit entities is a major focus of Freedom’s Edge. Massachusetts does not have a RFRA protecting for-profit entities, and those entities are not protected by the legal doctrines mentioned above, so there is no legal requirement to protect them.

Of course, this leaves a much harder question. Houses of worship and for-profit entities that claim religious exemptions are not the universe of religious entities. What about religious non-profit charities that serve the general public? Massachusetts may be genuinely  concerned that if it exempts religious entities, even if it is clear that for-profit entities are not included in that protection, the exemption might apply to large non-profit religious charities that serve the general public. This is a harder question which will need to be answered even if the case settles. I will not address the question in great detail here (it is addressed in several contexts in Freedom’s Edge).

Non-profit religious charities often serve the religious missions of the faiths that fund and/or run them. If they are forced to follow the new law they may close down thus harming the many people of all faiths that they serve. On the other hand, transgendered individuals face constant discrimination and are frequently overlooked in the dualistic gender dynamic society often promotes. The harm this causes has been well documented, including increased rates of suicide and other serious concerns. Laws like the one in Massachusetts, except as applied to traditional religious entities, are long overdue. So what should be done about non-profit religious charities that serve the general public? I think a good solution, albeit one that will disappoint both sides, is to allow the state to enforce the anti-discrimination provisions against these non-profits that serve the general public, but allow the non-profits to be exempt from the facility use (bathroom) elements of the law. First, few religious non-profit charities would refuse to serve transgendered individuals and those that do could be penalized under the law if they are open to the general public. This is not an ideal compromise and I will continue to think about a better approach. I hope you do the same. Hopefully someone far smarter than I can come up with a better approach. Until then, this compromise is a start.

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