Posted on December 26, 2020

NBC Implies Town Is Racist for Complying with the First Amendment

Hans Bader, Liberty Unyielding, December 23, 2020

Respecting someone’s legal rights doesn’t mean you agree with their bizarre beliefs. But NBC News doesn’t understand that. It implied that a town in Minnesota was guilty of racism, just because it allowed a white separatist church to operate there, rather than violating the First Amendment by trying to shut it down. The town would have been sued had it prevented the church from operating: Courts have ruled that racist religions have the First Amendment right to exist and to exclude people of different races from their meetings.

“After permit approved for whites-only church, small Minnesota town insists it isn’t racist,” says NBC in the title of its article. NBC wrongly implies that the city had the power to shut down the church because it excludes minorities from its congregation.

But churches have a First Amendment right to set their own membership rules, even when those rules are discriminatory.  The government is not allowed to meddle in church membership decisions. In its 2012 decision in Hosanna-Tabor v. EEOC, the Supreme Court unanimously said that such decisions are constitutionally exempt from antidiscrimination laws.  Courts have also ruled in favor of explicitly racist religions like the Nation of Islam, in cases like Donaldson v. Farrakhan (2002).

NBC cites a professor arguing that because racial exclusion violates Minnesota’s antidiscrimination laws, the town could have blocked the church from buying the property. But that argument ignores the First Amendment’s free exercise clause, which overrides antidiscrimination laws when it comes to churches. The Supreme Court made that clear, in its Hosanna-Tabor decision. That decision rejected an attempt to sue a religious institution for discriminating against an employee, and ruled that even federal civil-rights laws can’t be applied to churches.

Unaware of this, NBC cites law professor Laurence Tribe of  Harvard University as saying “the [town] council might have been able to prevent the private sale of the property, had it known about it, through [Minnesota] laws focused on forbidding racial discrimination in property transactions.”

If a church were a business, it is true that it could not legally discriminate based on race. But churches, unlike businesses, are fully protected by the First Amendment’s protection for the “free exercise” of “religion,” even when they discriminate. So Professor Tribe’s argument is wrong. He seems to have overlooked the Supreme Court’s ruling in favor of a church that discriminated, in Hosanna-Tabor v. EEOC.

The town’s reason for allowing the church to operate was the First Amendment, not racism. It would have been sued under the First Amendment if it didn’t. {snip}


{snip} The First Amendment is not a popularity contest. As the Supreme Court has noted, the First Amendment protects beliefs regardless of their “truth” or “popularity.”