Summary: This bill dangerously expands the definition of “public accommodation” to include nearly every entity that receives state funds or performs a public function. In doing so, it opens the door to government overreach in faith-based organizations simply for their operation aligning with their deeply held religious beliefs. Using the framework of so-called anti-discrimination, HB 37 could inforce compliance with ideological mandates that infring on religious liberty.
Analysis: At first glance, this bill may appear to be a routine update to Delaware’s nondiscrimination law. Unfortunately, what we’ve come to see as routine in Delaware is the threat to religious liberty with expansion of government authority.
By redefining a “place of public accommodation” to include any person or entity receiving state funding or performing a public function, the bill pulls private organizations—including religious nonprofits, faith-based schools, crisis pregnancy centers, and other community service organizations—into the same legal category as a basic retail store stripping them of their First Amendment protection. This means that even if an entity is not traditionally open to the general public or is driven by a religious mission, it would now be subject to the same nondiscrimination rules as a government agency or commercial business.
In practice, this redefinition could directly target religious organizations for their beliefs. A faith-based homeless shelter that separates accommodations by biological sex in accordance with its religious doctrine could be sued for discrimination. A religious school that receives state funds for student programs could be required to comply with gender identity policies that contradict its theological convictions.
HB 37 elevates newly created categories of nondiscrimination above long-standing, constitutionally protected rights—specifically, the First Amendment right to freely exercise religion. When laws like HB 37 redefine who must comply with state nondiscrimination mandates and how, they place faith-based organizations in the position to choose between violating their beliefs or shutting their doors.
The verbiage is vaguely expansive, particularly as it includes any “person” that performs a public function. This leaves the door open for aggressive enforcement and unpredictable litigation. It weaponizes the law against good-faith actors who serve their communities with integrity and compassion, simply because they do so from a faith-based worldview.
When heard on the last day of Session, Sen. Richardson filed an amendment to ensure that there was a clear exemption for religious freedom. That amendment failed. Three Senators chose not to vote at all, essentially saying no with their silence, with all others voting for or against in a pure party split.
Sen. Sturgeon offered what she described as a “friendly no.” This attempt at a gracious tone, still failed to leave important concerns about religious liberty unaddressed.