Gregory Baylor of Alliance Defending Freedom (ADF) was in Delaware on June 30 to offer testimony about the risks associated with passing House Bill 37.

HB 37 modifies the Delaware Equal Accommodations Law (DEAL) prohibiting discrimination in places of public accommodation (PPA) on the basis of race, age, marital status, creed, religion, color, sex, disability, sexual orientation, gender identity, or national origin. 

Baylor, an attorney with ADF, sat on the sidelines in the Senate through hours and hours of discussions and votes on other bills before HB 37 was brought to the floor very late on the last day of session.

(Many people would have either given up or at least been extremely annoyed for having to wait that long, but Mr. Baylor was polite and calm.)

Despite the concerns over the constitutionality of the bill, HB 37 passed the Senate and is ready to be signed by the governor. 

I asked Mr. Baylor to send me more information on his concerns about the constitutionality of the bill. Following are his remarks.

THE DELAWARE EQUAL ACCOMMODATIONS LAW,

HOUSE BILL 37, AND THE CONSTITUTION

A. The Delaware Equal Accommodations Law

The Delaware Equal Accommodations Law (DEAL) prohibits discrimination in places of public accommodation (PPA) on the basis of race, age, marital status, creed, religion, color, sex, disability, sexual orientation, gender identity, or national origin.

It defines “place of public accommodation” as “any establishment which caters to or offers goods, services, facilities, privileges, advantages, or accommodations to, or solicits patronage from, the general public.” 

Accompanying the definition are some illustrative examples: state agencies, local government agencies, public libraries, state-funded agencies performing public functions, hotel, and motels.

B. House Bill 37

H.B. 37 modifies the definition of the term “place of public accommodation.” 

It retains the general definition, i.e., “any establishment which caters to or offers goods, services, facilities, privileges, advantages, or accommodations to, or solicits patronage from, the general public.” 

It takes the illustrative examples (e.g., state agencies) and declares them to be PPAs, whether or not they offer goods and services to the general public.

Most significantly, H.B. 37 adds two new categories of PPAs:

• “A person that receives funding from this State to perform a public function”; and


• A person performing a public function under the control and supervision of a state or local government agency.”

Given its insertion of the new term “person,” H.B. 37 also includes a definition of that term.

C.    Does H.B. 37 Change Anything?

H.B. 37’s supporters claim that these changes to the definition of “place of public accommodation” do not substantially change existing law. They contend that H.B. 37 is designed primarily to prevent potential misinterpretations of the law.

More specifically, they are concerned that enforcement agencies and courts might incorrectly require that an establishment offer goods and services to the general public before deeming it a PPA. 

Their concern purportedly stems from a 2016 case (Ovens v. Danberg) in which the court held that a state prison was not a PPA even though it was operated by a “state agency” (one of the illustrative examples in the definition of PPA), because it did not offer goods and services to the general public.

If the legislature merely wanted to ensure that all state and local agencies were PPAs, all it had to do was to change the definition to declare that such agencies are in fact PPAs.

But H.B. 37 went further. 

It added two new categories to the definition of PPA: state-funded persons performing public functions, and persons performing public functions under the control and supervision of a state or local government agency. 

Especially given that H.B. 37 defines “person” to include individuals and non-governmental organizations, it is clear that H.B. 37’s supporters intended to reach individuals and organizations that are NOT already PPAs.

In her committee and Senate floor testimony, an attorney from the Division of Legislative Services claimed that state-funded non-governmental organizations were already covered by the DEAL because the current definition of PPA includes “state-funded agencies.” 

That argument rests on the assertion that the word “agency” includes non-governmental organizations. 

That is highly dubious, especially given the definition of the term “agency” elsewhere in the Delaware Code.

In any event, this argument does nothing to explain adding “persons performing public functions under the control and supervision of the government” to the definition of PPA.

In our view, H.B. 37 does substantially expand the definition of PPA.

At the outset, it is necessary to concede that the outer boundaries of the term are not entirely clear, especially given the breadth of the definition and the dearth of judicial and administrative decisions interpreting the term. 

For example, it is not entirely clear whether organizations like private schools, women’s shelters, and foster placement agencies are PPAs, because it is not clear whether they can be said to offer their services to the general public at large.

That said, H.B. 37’s addition of new elements to the PPA definition dramatically increase the possibility that these entities will be deemed PPAs. 

Many of them receive funding, either through the Grants-in-Aid program or otherwise. 

And the likelihood that they will be deemed to “perform a public function” is high, given the apparent breadth of that term as used in other places throughout the Delaware Code. 

The likelihood that these sorts of entities will be deemed PPAs is further increased by the uncertainty about the meaning of the term “control and supervision.” 

H.B. 37 does not define it, and it is not difficult to imagine that courts or administrative enforcement agencies would conclude that mere regulation (which always exists) constitutes “control and supervision.”

D.    Unconstitutional Applications of the DEAL As Amended by H.B. 37

The high likelihood that H.B. 37 substantially expands the DEAL’s definition of PPA means that the DEAL will violate covered entities’ constitutional rights more frequently than is the case under current law.

1.    The DEAL’s current threat to constitutional rights

Before discussing that, however, it is necessary to observe that the DEAL in its current form already threatens constitutional rights. 

Website designers, florists, cake artists, and other creative professionals are almost certainly PPAs under the current definition of the term. 

And similar laws in other states have been used to suppress and compel speech.

For example, in 303 Creative v. Elenis, Colorado’s ban on sexual orientation discrimination in places of public accommodation was interpreted to require website designer Lorie Smith to create websites for same-sex weddings, despite her religious and conscientious objections. 

Similarly, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the state of Colorado attempted to punish cake artist Jack Phillips for his refusal to create a custom wedding cake for a same-sex couple contrary to his religious beliefs.

In both of these cases, the U.S. Supreme Court held that these applications of Colorado’s ban on discrimination in PPAs violated the First Amendment to the United States Constitution. 

In 303 Creative, the Court held that the law compelled Lorie Smith to create speech with which she disagreed. 

The Court held that this burden on her rights was not justified by a sufficiently strong state interest.

Courts in other states have struck down the application of non-discrimination laws where such application burdens constitutional rights. 

For example, a federal district court halted New York State from forcing a photographer and blogger to create messages inconsistent with her faith as her case moves forward in court. (Emilee Carpenter Photography v. James.) 

In addition, the Kentucky Supreme Court ruled that the application of a public accommodations non-discrimination ordinance to a printing business violated its owner’s constitutional rights. (Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals.)

2.    H.B. 37 further threatens constitutional rights

H.B. 37’s expansion of the DEAL will exacerbate these constitutional problems. 

The new PPA definition could rope in private religious schools, foster and adoption placement providers, mental health and drug treatment centers, and shelters for women and the homeless.

The DEAL’s prohibition on gender identity discrimination is particularly problematic. Similar bans on gender identity discrimination have been interpreted to require:

• allowing males who identify as female to invade female-only private spaces;


• using inaccurate pronouns for people who identify as the opposite sex, neither sex, or both sexes;


• allowing boys who identify as girls to play girls’ sports; and


• mental health and medical professionals to deliver puberty blockers and cross-sex hormones and to perform body-altering surgeries as “treatments” for gender dysphoria, even on minors.

Zoe Ministries’ Hannah’s House might be newly subject to the DEAL if the governor signs H.B. 37 and it is enacted into law. 

Hannah’s House is a residential therapeutic program for girls aged 12-17 who have been victims of sex trafficking. 

For both religious and treatment-related reasons, Zoe Ministries does not permit boys who identify as girls to live in Hannah’s House. 

The DEAL’s prohibition on gender identity discrimination might be interpreted by an enforcement agency or courts to forbid this practice.

In such a circumstance, Hannah’s House would face a very difficult choice: stay in business and violate its religious beliefs, or adhere to its religious beliefs and go out of business. 

The primary victims of such an application of the law would be the girls Hannah’s House serves.

Faith-based foster and adoption placement services might also be harmed by H.B. 37. 

These entities often receive government funding, are closely supervised by the state, and almost will be deemed to perform a “public function.” 

Accordingly, they will probably be considered a PPA under H.B. 37.

Many religious foster and adoption placement services follow their religious convictions when placing children. 

For example, some will only place children with married opposite-sex couples. The DEAL’s prohibition on sexual orientation discrimination would almost certainly be interpreted to forbid such a practice, thereby forcing a faith-based provider to choose to between violating its beliefs or ceasing its operations.

The U.S. Supreme Court has held that government violates the Free Exercise Clause of the First Amendment to the U.S. Constitution by forcing a faith-based placement agency to make such a choice. 

In Fulton v. City of Philadelphia, the Court held that the city violated Catholic Charities’ First Amendment freedoms by ejecting it from a city-funded child placement program because of its religious practices.

E.    Conclusion

H.B. 37 substantially enlarges the definition of “place of public accommodation.” 

This expansion will bring a number of faith-based organizations under the Delaware Equal Accommodations Law. 

Application of the sexual orientation and gender identity components of the DEAL to such organizations will almost certainly violate their constitutional rights. 

There is a significant possibility that courts will strike down the application of the DEAL (as amended by H.B. 37) to these organizations under such circumstances.

Your comments are welcome. Send them to bryant.richardson@delaware.gov