As previously reported on our blog here, the Massachusetts Commission Against Discrimination (“MCAD”) issued guidance on September 1, 2016, implementing Massachusetts’ “transgender protection law,” which prohibits discrimination on the basis of gender identity in places of public accommodation. As I noted in that post, the MCAD guidance included a statement indicating that churches could be liable for violating the law while acting as a place of public accommodation. Only a few weeks later, on October 11, 2016, the Alliance Defending Freedom (“ADF”) sued the MCAD in federal court on behalf of four Massachusetts churches, claiming the law infringed on their First Amendment rights to free expression of their religious beliefs.
Now, the ADF has withdrawn its lawsuit in light of the MCAD’s revised guidance, issued on December 5, 2016. The prior language 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.” The revised guidance reads:
The law does not apply to a religious organization if subjecting the organization to the law would violate the organization’s First Amendment rights. See Donaldson v. Farrakhan, 436 Mass. 94 (2002). However, a religious organization may be subject to the Commonwealth’s public accommodations law if it engages in or its facilities are used for a ‘public, secular function.’ Id.
Further, the old version of the guidance included a footnote indicating that “[a]ll charges, including those involving religious institutions or religious exemptions, are reviewed on a case-by-case basis.” That footnote has been removed, and the substantive message has been incorporated into the body of the guidance. The guidance now reads: “as required by statute, MCAD reviews each complaint of discrimination based on the particular factual circumstances presented. See G.L. c. 151B, §5; Temple Emanuel of Newton v. MCAD, 463 Mass. 472 (2012).”
While the ADF has withdrawn its lawsuit in light of these revisions, it is clear that ADF will be keeping a close watch on any attempts by the state to enforce the law against religious organizations. The ADF may file future lawsuits if it feels the law is interfering with such organizations’ constitutional rights.