Wisconsin Judge Rules in Favor of Religious Freedom

Religious institutions exempt from nondiscrimination ordinance addressing gender identity in public accommodation

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January 14, 2019

A county judge in Wisconsin ruled last month that the city of De Pere's nondiscrimination ordinance infringed on the right of religious freedom, granting a victory to five churches and a religious broadcaster which brought a legal challenge against the statute.

In late 2017, De Pere adopted a nondiscrimination ordinance that, among other issues, addressed "gender identity and sexual orientation in housing, employment, advertising, and public accommodation," according to World magazine. The new policies were to apply to all "places of public accommodation."

Five churches and a local religious broadcaster challenged the ordinance. The plaintiffs' complaint argued that the city's ordinance differed from similar statutes in other states as "the De Pere ordinance does not clearly exempt religious organizations." They contended that "the ordinance is likely to be imposed on churches and other religious organizations in a manner that would mandate government orthodoxy in core religious functions, communication, and conduct."

More specifically, the churches asked the judge to determine whether they fell under the statute's definition of discrimination, given that the plaintiffs "hold views relative to family and marital status, religion, sex, gender identity and sexual orientation for which they make employment and facilities-use decisions. Additionally, each of the religious institutions notices, promotes, publishes and otherwise disseminates their views relating to these topics on certain communication-platforms including their websites and for some, blogs, and the radio."

If the judge determined the plaintiffs would be subject to the definition of discrimination, the churches asked the court to declare "that these provisions are unconstitutional absent an exemption for religious institutions."

A crucial question for determining whether the plaintiffs would be subject to the ordinance's regulations was whether the statute considered churches to be "places of public accommodation," which the ordinance defined as "all establishments within the City of De Pere which offers goods, services, accommodations and entertainment to the public. A place of public accommodation does not include any institution or club which by its nature is distinctly private."

Kevin Snider, chief counsel for the Pacific Justice Institute, which represented the plaintiffs, told the Washington Free Beacon he was surprised that the city claimed churches fell into that category.

According to Snider, the city argued that churches should be subject to public accommodation laws because they "at times allow the general public to enter their facilities, and sometimes the church activities or programs are not such that they require people to be of like faith to engage in the activities or programs."

"I know of no other place—no other courts, I should say—that's ever looked at a church and said that's a place of public accommodation," Snider said.

Snider said the plaintiffs feared the broadness of the statute would prevent them, for example, from saying no to hosting or officiating weddings, given that these churches have certain views on same-sex marriage and other nuptial arrangements.

"The ordinance is written so broad, if a church is a place of public accommodation, it can't essentially say no based on things such as religion, sex, sexual orientation, gender," said Snider.

The chief counsel also pointed to issues such as controlling the use of the church building by outside organizations, managing membership in the church, and hiring employees.

Under Wisconsin's freedom of conscience clause, which Snider said offers broader religious freedom protections than the First Amendment, the judge determined churches would not have to be deemed places of public accommodation if it violates their religious beliefs.

The city attorney for De Pere did not offer comment on the case, telling the Free Beacon they are awaiting a written order before issuing a comment.

Mark Goldfeder, who is the director the Restoring Religious Freedom Project at Emory University and was not involved in the case, explained to the Free Beacon some of the questions concerning religious freedom attached to cases like the one in Wisconsin. He gave the example of a church that does something "that is not necessarily completely tied to the religion," such as hosting a community potluck.

"I think it is a reasonable approach to say that would fall under the broad gambit of services that the church offers to its members and to a larger community," said Goldfeder. "But sometimes the church just rents its hall out and is a business and is renting its hall out for things that are completely unrelated to the church and they're just using the facility in a way to gain assets. To me, during that period of time, I think it's easy to say that they've become public accommodations during that period of use, so that the nondiscrimination laws would fall under that period of use, but when it reverts back to being a church, it would not."

"So I think that some of the stuff that we're seeing here is everyone agrees at the extremes, and there's some debate…of what exactly are the contours for that middle ground, when is a church acting in a religious way, and the truth is that these debates happen all the time in law and religion," Goldfeder added.