Four Massachusetts churches contend in a federal lawsuit that a new state law could force them to allow transgender people to use the church bathrooms, changing rooms, and shower facilities of their choice, violating the plaintiffs’ constitutional right to freely practice their religion.
The litigation opens a new front in a broader effort to undermine the law, which bars discrimination against transgender people in restaurants, malls, and other public accommodations.
Also Tuesday, the secretary of state confirmed that opponents had gathered enough signatures to place a repeal of the law on the ballot in 2018.
“This is bigger than bathrooms,” said Andrew Beckwith, president of the conservative Massachusetts Family Institute and a central player in the lawsuit and the repeal effort. “This law is eliminating rights that have existed for as long as this country has been in existence — fundamental rights to privacy, to modesty and safety, now constitutional rights to religious freedom.”
The co-chairs of Freedom Massachusetts, the coalition that pushed for passage of the public accommodations law this year, issued back-to-back statements condemning the lawsuit as “a last-ditch scare tactic to single out transgender people for attack” and the ballot measure as an attempt by a small group of people to overturn a law passed “with the overwhelming support of thousands of businesses, faith leaders, women’s advocacy and anti-violence groups, and fair-minded residents across the state.”
The Massachusetts Commission Against Discrimination recently issued guidance on how to comply with the law and found that “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 plaintiffs in the lawsuit argue that any activities in church buildings, even if they don’t include “overt religious inculcation,” are “religious in nature because they are motivated by the churches’ religious mission” and are aimed at “nurturing spiritual gifts.” And they say the commission should not be allowed to decide otherwise.
“We have an unelected, secular commission ... that’s attempting to set itself up as the arbiter of what is and is not religious,” said Christiana Holcomb, legal counsel with Alliance Defending Freedom, a national religious liberties advocate that sued on behalf of the local churches. “That fundamentally is not its decision to make.”
The commission does not comment on active litigation. But Jennifer Levi, director of the Transgender Rights Project at GLBTQ Legal Advocates and Defenders, called the lawsuit an “overreach” that seems to claim churches “never have responsibility under state non-discrimination laws.”
And she argued that agencies such as the Massachusetts Commission Against Discrimination are actually “well-positioned” to make determinations about questions of where the law applies to churches.
Joseph Singer, a professor at Harvard Law School, said the suit presents “a really interesting, hard issue.” Churches that hold spaghetti dinners may be thinking about converting members of the public, “but if they really are inviting anyone in the public to come in, without any religious test, then it looks like it’s not really a religious thing.
“The courts then have to figure out,” he continued, “how do they draw a line between what seems more secular-oriented, open to the public ... versus having something that’s more central to their religious mission.”
The four churches that filed the litigation are the Horizon Christian Fellowship in Fitchburg, the Abundant Life Assembly of God in Swansea, House of Destiny Ministries in Southbridge, and Faith Christian Fellowship in Haverhill.
The Alliance Defending Freedom, the Arizona-based group taking the lead on the lawsuit, is involved in a similar challenge in Iowa and a battle over transgender student access to locker rooms in Illinois.
A spokeswoman for Massachusetts Attorney General Maura Healey, who was named in the lawsuit along with the commission, said her office is reviewing the filing and declined to comment. But she offered a broad defense of the public accommodations law, which Healey lobbied the Legislature to pass.
“We are pleased that we finally have a law in place that protects transgender people from discrimination in public places,” said the spokeswoman, Jillian Fennimore, in a statement. “This law is about civil rights and is critical for people who were without full protection and equality under the law for too long.”
The statute appears to have broad support. A Suffolk University/Boston Globe poll from early May, before the measure was signed into law by Governor Charlie Baker, found 53 percent of voters favored it, 30 percent were opposed, and 15 percent were undecided.
Baker, a Republican, was hesitant to declare a position on the measure while it was still before the Legislature. But he eventually came out in favor, angering some on the right. If he runs for reelection in 2018, as expected, he will now have to share the ballot with the repeal question.
That could prove to be awkward for a governor trying to rally the GOP base. But it will also serve as a reminder of the moderate Republican brand he has converted into consistently high polling numbers.