Protecting Your Church From Same-Sex Issue Liability

By Dick Loizeaux

The recent Supreme Court ruling has raised many questions and fears about the liability of pastors and churches that will not perform same-sex marriages or use their churches for those purposes.

To help you navigate the legal issues, Converge MidAmerica would like to clarify a few basic answers and direct you to several expert resources. This article should not be considered as legal advice, but only a summary of the legal advice given by experts. Each church must do their own homework and arrive at their own conclusions.

The questions this article addresses are:

  1. “What did the SCOTUS ruling actually say and
    not say?”
  2. “Does the ruling uphold the First Amendment right of freedom of religion?”
  3. “Is there any way to reinforce and protect our religious rights?”
  4. “Can this ruling affect a church’s ability to rent public facilities like schools?”
  5. “Might this ruling affect a church’s local, state and federal tax exemption?”
  6. “Will ministers be legally liable for refusing to perform same-sex marriages?”
  7. “Will ministers be legally liable for refusing to hire people from the LGBT community?”
  8. “Can a church be sued for discrimination by refusing to conduct or allow a same-sex marriage on
    their property?”
  9. “Should churches who do not support homosexuality or same-sex marriages put statements to that effect in their religious beliefs and governing documents?
  10. “Does Converge MidAmerica recommend a marriage statement?”
  11. “Does Converge MidAmerica recommend a facilities usage statement?”
  12. “Will these policies and statements work?”
  13. “What are other resources I can use?” 

1.  “What did the SCOTUS ruling actually say and not say?”
At issue was the state’s right to prohibit, or to refuse to recognize, same-sex marriages. The ruling established the equal rights of same-sex couples to marriage so that states can no longer bar same-sex marriages. However, while same-sex couples now have a right to marry, the ruling does not take away the First Amendment right of clergy to decline to be the ones to perform that marriage ceremony. 

2. “Does the ruling uphold the First Amendment right of freedom of religion?”
It upholds it, but not as clearly as we would like. As Justice Thomas points out, the SCOTUS ruling protects the freedom of religious belief, advocating and teaching, but is not explicit about the protection of religious practice. Exactly how the First Amendment protection of the “exercise” of religious freedom will apply is a matter still to be clarified. Judge Alito believes that lack of clarity will result in legal action at the federal, state, and local level for years to come. As Richard Hammer says “…there are numerous collateral issues that will need to be resolved by future litigation.”

3. “Is there any way to reinforce and protect our religious rights?”
The “First Amendment Defense Act” (S.1598) has been introduced in the Senate to prohibit the Federal Government from taking any “discriminatory action” against a person whose practices are guided by a belief that marriage is between one man and one woman. If passed that will be one step in the process of clarifying and protecting religious freedoms.

4. “Can this ruling affect a church’s ability to rent public facilities like schools?”
Yes, it may. That will usually be decided at the local level, as it always has. Some school boards may choose to include equality or anti-discrimination statements in their rental contracts. 

5. “Might it affect a churches local, state and federal tax exemption?”
Yes, eventually it may. It already did for Bob Jones University. We must assume tension and legal action in those areas.  

6. “Will ministers be legally liable for refusing to perform same-sex marriages?”
There is general consensus that there is sufficient SCOTUS precedence to protect ministers from civil or criminal liability for refusing to perform same-sex marriages. In addition, current state laws recognizing same-sex marriages contain broad clergy exemptions. The fact is that clergy routinely decline to perform marriages based on their religious beliefs for a wide variety of reasons which have never been challenged. In the history of the United States no minister has ever been sued for refusing to perform
a marriage. 

7. “Will ministers be legally liable for refusing to hire people from the LGBT community?”
A SCOTUS decision in 2012 affirmed the “ministerial exemption” to employment discrimination laws. The “ministerial exemption” combined with the Free Exercise clause and the Establishment Clause should prevent civil courts from resolving discrimination disputes between churches and clergy. So most legal experts do not believe ministers should have any concern on those issues.

8. “Can a church be sued for discrimination by refusing to conduct or allow a same-sex marriage on their property?”
The answer seems to be that since discrimination laws exist at the local and state level, and their interpretation and enforcement varies, you cannot assume you are protected. Three different responses are developing within various religious groups: 

1. Your church can stop doing civil marriages and only perform religious marriages, which can then be guided by your beliefs . For the First Things discussion on this issue click here.

2. You can adopt a policy that the church will only rent your building for weddings by church members. Since they are members they have already agreed to abide by your beliefs.

3. You can develop clear statements in your Statement of Faith, Constitution or By-Laws, Facilities Use Policies, Employment Policies,  and Wedding policies. You should then be protected under freedom of religious belief. 

Richard Hammer seems to favor limiting marriage rental to members, and not renting the church building for the sake of generating revenue. He points out that may not help protect you if you let community groups use your building at no cost. To access Richard Hammer click here.

The Alliance for Defense of Freedom favors creating protection through church documents. They have developed two excellent downloadable resources—Protecting Your Ministry and Marriage By Design—that will help churches protect themselves from potential lawsuits while standing firm for the truth about marriage.

To access Alliance for Defense of Freedom downloadable resources click here.

9. “Should churches who do not support homosexuality or same-sex marriages put statements to that effect in their religious beliefs and governing documents?
Absolutely, and as soon as possible. If your exemption is based on religious beliefs, the clearer your statements are the stronger your protection is.  

Richard Hammer believes that amendments to your constitution or by-laws defining marriage as between one man and one woman, “while not inappropriate may be unnecessary, redundant or ineffective.” He recommends addressing them in specific resolutions or policies. His conclusion is that “including a statement in the church’s by-laws defining marriage may be of some help should the church’s tax exemptions be challenged, or if the church is sued for violating a public accommodations law due to it’s refusal to host same-sex marriages, but it is no guaranty of protection. 

The Alliance For Defense of Freedom believes that clear, specific, and consistently enforced statements and policies, are your best protection. Click this link to access policy statements for your: Statement of Faith; Religious Employment Criteria; Facilities Use Policy; Formal Membership Policy; and Marriage Policy. Converge MidAmerica strongly recommends that your church consider adopting or adapting these statements as soon as possible to protect your church. 

10.  “Does Converge MidAmerica recommend a marriage statement?”
Yes. It is on our website (www.convergemidameria.org) under “Resources / By-laws”. It says:

Same-sex marriage (or union) is a hot button issue that can have serious legal ramifications. 

The truth is that your church and staff do not need to conduct, participate in, or rent your building for same-sex ceremonies. It is a question of religious freedom. However, to ensure it is legally defined as a religious issue and not an act of discrimination, your religious beliefs need to be clearly stated in your church By-Laws and other policy documents.

After months of research and securing legal counsel we recommend against a long, complicated, biblically detailed “position paper” being included in your By-Laws. Briefer is better. Keep any biblical position paper as a separate document. Instead, if you have an “Affirmation of Faith” section in your Constitution or By-Laws (“We Believe” statements), you might consider adding the following statement:

Christian Marriage. We believe that Christian marriage is a sacred institution ordained of God for the happiness of mankind and the propagation of the race. It is the spiritual and physical union of one man and one woman; this is the only legitimate sexual relationship and, according to the scriptural ideal, is to be broken only by death. Accordingly, this Church, it’s Pastors, staff and members, will not recognize any other union as a legitimate marriage; our Church and staff shall not perform or participate in any same-sex marriage or unions or ceremonies of any kind; and Church facilities shall not be used for such purposes.  

We are encouraging this to be placed after the belief statement on Christian Conduct in the current Converge Worldwide Affirmation of Faithclick here for downloadable copy

11. “Does Converge MidAmerica recommend a facilities usage statement?”
Yes. That is also addressed on our website, and says:

Church buildings are private property and are used primarily for the exercise of religion.  As such, the use of church buildings is cloaked with First Amendment protection both under the Free Exercise Clause and the Free Speech Clause. If the government attempts to force a church to use its private property in ways that are inconsistent with its religious beliefs, the government would violate the church’s First Amendment rights.

Put simply, a church has a right to only allow uses of its facilities that are consistent with its religious beliefs and to deny all other uses. No church should ever feel compelled to open its buildings for use in a same-sex “wedding” ceremony.

The best way to protect your church is to adopt a facility usage policy that outlines the religious nature of the church buildings and restricts usage of the facility to uses that are consistent with the church’s biblical beliefs. It is always best to adopt a policy governing the use of the facility because a policy is powerful evidence of the church’s beliefs and practice regarding use of its buildings. And if your church adopts a policy, it should follow that policy consistently.

Alliance Defending Freedom has prepared a sample facilities usage policy for churches. This policy is crafted to allow churches to make the decision as to what uses they will allow and to ensure that the church has the ability to approve uses consistent with its biblical beliefs and to deny all other requests to use the church buildings. Click here to download the policy and consider having your church adopt it.

And if your church is ever told that it must allow use of its facilities for something that is inconsistent with the church’s beliefs, contact the attorneys at Alliance Defending Freedom to review the facts. We want to ensure that the church remains free to minister through its church buildings in ways that are consistent with its religious faith.

12.  “Will our insurance company cover our liability if our church or staff are sued over same-sex issues?”
That may vary from one company and policy to another. We have heard of one large church insurer in the south who is notifying churches they will not cover liability on same-sex issues. 

Church Mutual tells us they will defend any lawsuits brought, but remind us statements need to be in the By-Laws and Employee Handbook or policies. They recommend only church members be married in the church. They are developing a paper right now to guide churches.

Brotherhood Mutual has defense and discrimination coverage and has a religious freedom coverage that can be added at your next renewal for an additional fee. Here are links to 3 of their documents on this issue:  Link 1, Link 2, Link 3 

13.  “Will these policies and statements work?”
Something is only a policy if it is enforced consistently. If you make one exception but reject another request for exception your liability for discrimination increases signifcantly.

Also, these issues are a compelling reason why a church should promote membership, and require all leaders (however defined) to be members. If someone has not signed an agreement to submit to your beliefs and leaders you cannot compel them to abide by your moral values or exercise church discipline against them.

14. “What are other resources I can use?”

1.  The Pacific Justice Institute

2.  The Gospel Coalition

3. The National Association of Evangelicals 

4. ChurchLeaders.com has several articles and videos you can explore

 

Tags: 

Church Planting Resources, Marriage, Same-Sex, Dick Loizeaux