4 Questions from the Supreme Court’s Gay Marriage Ruling
Sorting fact from fiction for church leaders after last month's historic decision.
4 Questions from the Supreme Court’s Gay Marriage Ruling

In a 5-4 ruling on June 26, 2015, the United States Supreme Court ruled that the right of same-sex couples to marry is part of the Fourteenth Amendment's guarantees of due process and equal protection of the laws, and therefore any state law that in any way limits this right is unconstitutional and void. The effect of the Court's decision was to invalidate laws and constitutional provisions in 13 states defining marriage solely as a union between one man and one woman.

For many church leaders, the central issue is the impact of the Court's ruling on religious practices. In particular:

  1. Will ministers be subject to civil liability for refusing to perform same-sex marriage ceremonies in violation of their religious beliefs?
  2. Can a church be penalized or sued for refusing to host a same-sex marriage ceremony on its premises?
  3. Are the tax exemptions of religious schools and churches opposed to same-sex marriage jeopardized by the Court's ruling?
  4. Should churches that are opposed theologically to same-sex marriage say so explicitly in their bylaws or other governing documents?

These four questions are addressed below.

1. Will ministers be subject to civil liability for refusing to perform same-sex marriage ceremonies in violation of their religious beliefs?

Many ministers who are opposed on religious grounds to same-sex marriages are voicing concern over their potential liability for not performing such marriages. Is this fear well-founded or exaggerated? Consider the following:

  • Prior Supreme Court rulings. Several decisions of the United States Supreme Court strongly suggest that the First Amendment guaranty of religious freedom permits clergy to perform or not perform marriages according to their religious beliefs.
  • Other grounds for not performing marriages have never been questioned. Clergy routinely decline to perform some marriages based on their religious beliefs. Some examples are marriages between more than two persons (polygamy or polyandry); between a parent and child (incest); between first cousins (though legal in at least 21 states); where one or both parties have been previously married and divorced; where one or both parties are not a member of the minister's faith tradition; or where one or both parties are deemed by the minister to be too spiritually immature for marriage. In the 238-year history of this country, no minister has been sued, much less found liable, for refusing to perform a marriage on these or similar grounds. A minister's refusal to marry a same-sex couple in contravention of his or her religious beliefs almost certainly would be viewed in the same light.
  • State laws recognizing same-sex marriages contain broad clergy exemptions. Prior to the Supreme Court's recent decision validating same-sex marriages, such marriages were deemed lawful in 37 states by statute or court ruling. According to Chief Justice John Roberts' dissenting opinion in the same-sex marriage case: "Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice."

Unfortunately, the Supreme Court's weak recognition of religious liberty did not include a similar provision. But, the fact that all state legislatures did so is strong evidence of the constitutionally protected authority of clergy to choose who they will, or will not, marry based on their religious beliefs.

2. Can a church be penalized or sued for refusing to host a same-sex marriage ceremony on its premises?

The answer to this question is complicated by two factors. First, the courts have yet to address the issue, and so all we can do is speculate. And second, any answer will depend on the wording, application, and exemptions in a veritable patchwork quilt of hundreds of local, state, and federal laws forbidding discrimination by places of "public accommodation." This makes it impossible to generalize.

A church must determine:

  • if it is a place of "public accommodation" under applicable local, state, or federal laws;
  • if so, is an exemption available for churches;
  • if a church exemption exists, have all the conditions for the exemption been satisfied; and
  • the constitutional protections available to churches based on applicable judicial precedent.

The answers to these questions will vary from jurisdiction to jurisdiction. It is likely that the courts will conclude that the greatest constitutional protection applies to churches that allow their premises to be used for weddings only by members. However, any constitutional protection likely will be diminished or eliminated in the case of churches that rent their facilities to the general public as a revenue-raising activity. Church leaders should carefully consider the potential downside of entering the commercial marketplace in order to raise needed funds.

3. Are the tax exemptions of religious schools and churches opposed to same-sex marriage jeopardized by the Court's ruling?

Possibly. In 1983, the Supreme Court ruled that the IRS had properly revoked the tax-exempt status of Bob Jones University on the basis of its racially discriminatory practices, even though the University based its practices on an interpretation of the Bible clearly articulated in its governing documents. The Supreme Court's ruling in the Bob Jones University case suggests that doctrinal provisions in the governing documents of religious schools that are viewed by the IRS or the courts as incompatible with the fundamental right of same-sex couples to marry may not be enough to fend off IRS challenges to tax-exempt status.

This same logic could apply to churches based on the Supreme Court's recognition of same-sex marriage as a fundamental right enshrined in the Constitution. At least one law school professor opined recently that churches that engage in any discriminatory practices involving sex, sexual identity, or sexual orientation should be denied tax-exempt status.

4. Should churches that are opposed theologically to same-sex marriage say so explicitly in their bylaws or other governing documents?

Many who are opposed to same-sex marriage are imploring churches to amend their bylaws or other governing document to insert a provision defining marriage as exclusively a union between one man and one woman. While such an amendment is not inappropriate, it may be unnecessary, redundant, or ineffective for the following reasons:

First, many church governing documents already contain provisions that provide a theological basis for the church's definition of marriage.

Second, bylaws are rules of internal governance and administration. Policies pertaining to marriage or any other issue are best addressed in a policy manual.

Third, and most importantly, a bylaw amendment adding a marriage policy to a church's bylaws is no guaranty of protection since it might be ignored by an activist court. Remember that in the Supreme Court's ruling in the Bob Jones University (1983) case, the Court ruled that the IRS had properly revoked the tax-exempt status of Bob Jones University on the basis of its racially discriminatory practices, even though the University based its practices on biblical grounds that were clearly referenced in its governing documents. This suggests that bylaw amendments are no guaranty of protection.

The bottom line is that including a statement in a church's bylaws 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 its refusal to host same-sex marriages, but it is no guaranty of protection.

Conclusion

The Supreme Court's same-sex marriage ruling leaves many unanswered questions. I will be monitoring developments, and I will provide you with updates when warranted. A fuller version of my analysis is already available on ChurchLawAndTax.com. You can also read ManagingYourChurch.com’s previous coverage of the ruling here and here.

Richard Hammar is senior editor for Church Law & Tax Report and Church Finance Today. He is an attorney and CPA, specializing in legal and tax issues for churches and clergy.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is published with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations."

Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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