.png)
What Are Public Programming Laws and Why Do They Matter?
By Napa Legal Staff
States protect civil rights by requiring places of public accommodation to “serve all comers” without respect to certain protected characteristics.1 In theory, these should be good laws that simply prevent places that offer public accommodations (such as restaurants, coffee shops, retail stores, etc.) from refusing to serve customers based on inherent characteristics like race or ethnicity.
However, recently, laws have been enacted that go much further, imposing restrictions on the religious freedom of nonprofits that serve the public. Such laws threaten to exclude faith-based institutions from the marketplace of charitable services and limit vulnerable populations’ access to needed services.2
Faith-based organizations must be free to manage their internal affairs in accordance with their sincerely-held religious beliefs and in ways that further their religious mission. The church autonomy doctrine, based on an application of the First Amendment of the United States Constitution, outlines our country’s protections for this freedom.3 This applies both to decisions to provide programming only, or mostly, to members of the organization’s own religion, as well as a religious organization’s prudential decisions to serve a population that includes those who are not of the same faith.4 In both cases, the fundamental First Amendment principle at play is that the government does not have the right to control the internal affairs of religious institutions.
Note that such public programming laws (also called “public accommodation laws”) often use the term “nondiscrimination laws;” this term can be used to include both civil rights laws protecting against discrimination on the basis of race, ethnicity, etc., as well as modern laws that treat sexual expressions, such as sexual orientation and gender identity, as protected classes.5
How do public programming laws work and how broad can they be?
It is important to understand that laws related to nondiscrimination in public programming vary widely. The variations occur in two ways: 1) differences in what types of activities and services are included in the definition of “public programming” or “public accommodation;” and 2) differences in what a state includes in its list of protected classes.
Most state public programming laws will include a definition listing which activities or services are subject to the law. The definitions will often include restaurants, retail stores, hotels, movie theaters, and other common services offered to the public. It is important to understand if any of the services your organization offers fit the definition of public accommodation in the state where you offer services, so you know whether the laws apply to your organization.
Additionally, states vary in what classes are protected under the public programming laws. Some states may have narrow laws that only refer to discrimination on the basis of race, ethnicity, and religion, or on the basis of age. Others may have more extensive lists of protected classes, including sex, sexual orientation, and gender identity.
It is important to be aware of the laws in your state because, depending on the classes that are protected, these laws might not present any problem to the way your organization practices its faith. Most laws banning discrimination on the basis of race or ethnicity will not affect a religious organization at all, while laws listing sexual orientation or gender identity as protected classes may have serious religious liberty implications.
What is the availability and scope of religious exemptions to these laws?
Once you understand the scope of your state’s public programming laws, the next thing to look for is what exemptions are available for religious organizations. This too involves some careful research, because there are several different types of exemptions that vary by state.
Some states may have broad exclusions, stating that the public programming laws do not apply to religious organizations, institutes, or associations at all.
Other states may have specific exemptions for religious organizations. For example, some states subject religious organizations to these laws, but have specific carve-outs stating that these laws do not prevent religious organizations from taking religion into account and/or preferring members of their own religion when providing public programming. Other states may have exemptions stating that the laws related to discrimination on the basis of sexual orientation or gender identity do not apply to religious organizations.
As you look at the state laws that apply to your organization, check to see if the statute defines which religious organizations are covered by the exemption or exclusion. Some states might have a broad definition, exempting or excluding all entities formed for a religious purpose, or all religious organizations, institutions, associations, and corporations. This is likely a broader definition that encompasses most faith-based nonprofits. But beware: some states may exempt or exclude only “religious corporations” and the state may have a narrow definition of what that term means. If the law in your state is not clear, consult with an attorney to see if the exemptions or exclusions apply to your organization.
What do I do now?
Now that you understand what public programming laws are and how they can affect religious organizations, it is time to take action. Review all activities or services offered by your organization that are in any way open to the public. Then go to Napa Legal’s Multi-State Compliance Matrix and find the relevant laws for any states in which your organization offers these public programs. Once you find the nondiscrimination law, which classes are protected, and what exemptions are available, you will be able to determine whether any of these laws apply to any public programming offered by your organization. If these laws do apply to you and you don’t know what to do next, it may be time to speak to an attorney.
You may also want to consult Napa Legal’s Faith & Freedom Index to explore the laws of the different states and see how each state ranks on public programming laws and other factors that may affect your organization.
---------------------------------
1 Jamie Reinah, LGBTQIA+ Public Accommodation Cases: The Battle Between Religious Freedom and Civil Rights, 90 Fordham L. Rev. 261 (2021).
2 See Fulton v. City of Philadelphia, 593 US _ (2021) (nondiscrimination law could have resulted in the removal of a longstanding religious adoption organization from a city foster program).
3 Carl H. Esbeck, An Extended Essay on Church Autonomy, 22 The Federalist Society Review 244, 248 (2021).
4 See e.g., Luke 10:25-37.
5 While Napa Legal may use the term “nondiscrimination laws” at times to describe such laws, the latter use of the term inappropriately conflates sexual expression with protected characteristics. The inclusion of the latter in the use of the term “nondiscrimination laws” is not an endorsement of the propriety of such laws. The term is used for convenience because this is how it is generally defined in current state laws and popular commentary.
