After the Same-Sex Marriage Ruling, What Legal Rights Do Pastors, Churches Have?
Understanding the officiating of ceremonies and the use of buildings for weddings.
After the Same-Sex Marriage Ruling, What Legal Rights Do Pastors, Churches Have?

In late June, the US Supreme Court ruled that same-sex couples have a legal right to marry, and many pastors are wondering what this means for their work and their church. Richard R. Hammar, a well-known attorney specializing in legal issues for churches, helps clear the confusion.

There's strong evidence that pastors are not legally required to officiate same-sex marriages, Hammar says. The Supreme Court's ruling provided a weak recognition of religious liberty, but all states that had allowed same-sex marriages prior to the ruling had laws that contained a broad clergy exemption. Hammar says that this is "strong evidence of the constitutionally protected authority of clergy to choose who they will, or will not, marry based on their religious beliefs."

Although not addressed in this ruling, one note of caution for churches is that refusing to host a same-sex marriage ceremony on the premises of a church may lead to a church being sued, but only if certain situations exist, like if the church is a place of "public accommodation" under applicable local, state, or federal laws, and the jurisdiction the church is in. Hammar says:

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.

Opinions differ on whether or not a church's tax-exempt status could be revoked for opposing same-sex marriage. In August, IRS Commissioner John Koskinen promised that the tax-exempt status of religious organizations that object to same-sex marriage will not be revoked. However, Michael Batts, a CPA who specializes in tax issues for churches and serves as an Editorial Advisor for Christianity Today’s Church Law & Tax Team, told the Baptist Press that some types of tax exemptions may be in jeopardy.

Some churches that oppose same-sex marriage have considered amending church bylaws to define marriage in the hopes such a move would help legally protect them. However, Hammar says "while not inappropriate, it may be unnecessary, redundant, or ineffective" to make such changes. He gives three reasons: many governing documents already contain this type of provision; bylaws are rules of internal governance and administration—not policy manuals; and it doesn’t guarantee protection.

For more detailed information on this, read Hammar's full article in the September/October issue of Church Law & Tax Report.

Church Law & Tax will continue to review cases and news related to this topic.

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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