When is a private religious college a “public accommodation,” and therefore subject to state anti-discrimination laws requiring access? According to a Pennsylvania ruling this year, religious nonprofits should not presume upon any categorical deference by the government in answering this question, based merely on the organizations’ self-identified religious affiliation. Instead, they should be prepared to demonstrate both how their religious identity removes them from public accommodation status and how such religious identity relates to their actions at issue. Religious schools and other nonprofits thus need not panic based on this adverse public accommodation ruling, but they should definitely take note and check their own readiness for such challenges.
On May 4, 2017, the National Day of Prayer, President Trump issued his much anticipated Executive Order titled “Promoting Free Speech and Religious Liberty.” Initial reactions span a wide spectrum, with some calling it meaningless, some warning that it is toxic and will result in dreaded “dark money” for political campaigns, and still others leveraging it as a cry for entire repeal of the nonprofit political campaign ban (sometimes known as the Johnson Amendment) as unconstitutional.
President Trump recently told faith leaders that he would “totally destroy” the Johnson Amendment, referring to then-Representative Lyndon Johnson’s sponsored legislation banning churches’ and other Section 501(c)(3) organizations’ political campaign speech. As W & O attorney Ryan Oberly recently observed in Modern Healthcare’s article, the prohibition is controversial and difficult to enforce, given both the free speech and religious liberty constitutional interests at stake and the IRS’s questionable capability to enforce the law fairly. Many religious organizations have openly flaunted the ban by endorsing or speaking against candidates, leaving others to wonder whether they should follow the letter of the law despite its dubious constitutional legitimacy.