Pastor, Church & Law

Performance of Marriage Ceremonies

§ 3.04

Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only “ordained” or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and in addition to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.


A minister has the authority in all states to perform marriages. This authority is granted by state law. State laws vary widely in defining those clergy who are authorized to perform marriages. Some states require that the minister be ordained; others require that the minister be either licensed or ordained; and others omit any specific reference to either licensure or ordination.

It is the state, and not the minister or religious organization, that ordinarily will decide whether a minister is in fact “ordained” or “licensed” and therefore qualified to perform marriages under a state law requiring either ordination or licensure. To illustrate, ministers receiving ordination credentials through the mail-order Universal Life Church have been denied the right to perform marriage ceremonies under state laws permitting “ordained ministers” or even “ministers” to conduct such ceremonies.8 Ravenal v. Ravenal, 338 N.Y.S.2d 324 (1972); Cramer v. Commonwealth, 202 S.E.2d 911 (Va. 1974).The courts obviously are faced with a difficult task when they attempt to deny legal privileges to some ministers on the basis of principles that do not involve a judgment on the legitimacy of religious belief. The difficulty of such a task is reflected in the unsatisfactory attempts by the courts to explain the distinction between ministers who are eligible for certain legal privileges and those who are not.

In most states, it is a criminal offense for one to perform a marriage ceremony if he or she is not authorized to do so by state law. If a state law authorizes only ordained ministers to perform marriage ceremonies, an unordained minister may be criminally liable for performing a marriage. Criminal penalties for the unauthorized performance of a marriage ceremony generally include a small fine or short prison sentence.

performance of marriages by nonresident ministers

Are ministers authorized to perform marriages in other states? To illustrate, what if a minister is asked to perform a marriage in another state for a friend or relative. Is the minister legally authorized to do so? The answer to this question will depend upon the law of the state in which the marriage will be performed. Many states have enacted laws that permit nonresident ministers to solemnize marriages.

Some states have enacted laws authorizing nonresident ministers to perform a marriage within the state if they are legally authorized to do so in their state of residence. A few states impose limitations on the authority of nonresident ministers to perform marriages. For example, one state law specifies that “the state secretary may authorize, subject to such conditions as he may determine, the solemnization of any specified marriage anywhere within the commonwealth by [a nonresident] minister of the gospel in good and regular standing with his church or denomination.”9 MASS. GEN. LAWS CH. 207, § 39. See also OR. REV. STAT. § 106.120.

Ministers should not agree to perform a marriage in another state without first confirming that they are legally authorized to do so.

Key point. Some ministers who perform marriages in other states attempt to avoid any legal problems by having a resident minister solemnize the marriage, while they assist.

registration of ministers

Some states require ministers to register with a government agency before they are authorized to perform marriage ceremonies. Prior to performing marriage ceremonies, ministers should know whether or not such a requirement exists.


Every state has enacted legislation prescribing various requirements that must be satisfied in order for a lawful marriage to occur. While there is much variation among the states, some requirements are common. These include the following:

legal capacity

Each state prescribes those persons who are not permitted to marry, or who may marry only if certain conditions are satisfied. For example, persons who are related too closely are prohibited from marrying in all states, although the prohibited degree of relationship varies widely. Also, persons below a specified age are prohibited from marrying without the consent of one or both parents, or a court. Many states prohibit marriages between persons with a mental disability and imprisoned felons. Persons with a living spouse are also barred from marrying. It is important for ministers to become familiar with their state’s description of those persons who are authorized, and not authorized, to marry.


Most states forbid a minister from performing a marriage unless the couple has obtained a marriage license. In many states, such licenses are obtained from the county recorder’s office. Licenses are obtained by completing and submitting an application to the appropriate government office, along with the applicable fee. License applications generally ask for biographical and residential information. Licenses usually are valid for only a specified period of time, and only in the county in which they were issued. Some states require a blood test as a condition to receiving a marriage license. Many states impose a “waiting period” of a few days after an application for a license has been submitted until the license may be issued.

Key point. Ministers should be familiar with the license requirements under local law, and share this information with engaged couples. Many counties publish pamphlets for engaged couples that summarize the license requirements. It would be a good practice for ministers to have a supply of these publications on hand.

Key point. Ministers may be criminally liable for marrying couples with expired licenses. Well in advance of a marriage, the minister should request a copy of the marriage license, and ensure that it does not expire prior to the wedding date.

the ceremony

State laws provide little guidance with regard to the content of the marriage ceremony itself. Consider the following examples of state law requirements for a valid wedding ceremony:

• A valid marriage is contracted by two persons with a proper marriage license who participate in a ceremony conducted by and in the presence of a person who is authorized to solemnize marriages and at which at least two witnesses who are at least eighteen years of age particiate.10 ARIZ. REV. STAT. ANN. § 25-125.

• No particular form for the ceremony of marriage is required for solemnization of the marriage, but the parties shall declare, in the physical presence of the person solemnizing the marriage and necessary witnesses, that they take each other as husband and wife.11 CAL. FAMILY LAW CODE § 420.

• In the solemnization of marriage, no particular form shall be required, except that the parties shall declare, in the presence of the person solemnizing the marriage and two attending witnesses, that they take each other as husband, wife, or spouse.12 MINN. STAT. § 517.09.

• No particular form or ceremony is required when a marriage is solemnized as herein provided by a clergyman or magistrate, but the parties must solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife. In every case, at least one witness beside the clergyman or magistrate must be present at the ceremony.13 N.Y DOM. REL. LAW ART. 3, § 12.

Many states permit members of religious sects to be married according to the rites and customs of their sect, even though such ceremonies may not otherwise be consistent with state marriage laws. Such laws do not dispense with licensing and reporting requirements, however.

the marriage certificate

Most states require ministers to complete a marriage certificate after the solemnization of a marriage, and return it to the same government office that issues marriage licenses. A second certificate often is obtained, and is given to the married couple. State law generally prescribes the deadline for filing marriage certificates, and the penalty for not doing so.

Misspelling a name, inserting the wrong date, or having less than the required number of witness signatures on the marriage certificate will not affect the validity of the marriage. It is generally held that a marriage will be considered valid even though the minister fails to complete and return a marriage certificate. And, a marriage will be valid even though the minister performing the ceremony was not authorized to do so, at least if the parties did not know that the minister lacked authority.14 See, e.g., UNIFORM MARRIAGE AND DIVORCE ACT § 206.

criminal penalties

Many states also impose criminal penalties upon ministers for the following acts:

  1. failure to maintain a record of marriage ceremonies performed
  2. failure to return promptly to the proper authorities a properly completed certificate of marriage and the license to marry
  3. marrying persons without a marriage license, or with an expired license
  4. marrying persons not legally capable of marrying (because of age, relationship, or some other disability specified by state law)

Do “No Fault” Divorce Laws Violate the First Amendment?

Several persons have filed lawsuits challenging the constitutionality of “no fault” divorce laws on the ground that such laws violate the core religious beliefs of Christians. The courts have rejected such challenges. To illustrate, a husband fought his wife’s protracted efforts to obtain a divorce, claiming that the state no-fault divorce law violated the First Amendment’s “free exercise of religion clause” since he was opposed to divorce on religious grounds. A Connecticut court rejected the husband’s argument, noting that the United States Supreme Court has “consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” The state no-fault divorce law was a valid and neutral law of general applicability, and “did not in any manner infringe on the husband’s right to exercise his religious beliefs merely because it permitted his wife to obtain a divorce from him against his wishes.” The state legislature, in enacting the no-fault divorce law, “could rationally conclude that public policy requires an accommodation to the unfortunate reality that a marital relationship may terminate in fact without regard to the fault of either marital partner, and that such a relationship should therefore be dissoluble in law upon a judicial determination of irretrievable breakdown.”15 Grimm v. Grimm, 844 A.2d 855 (Conn. App. 2004). See also Trickey v. Trickey, 642 S.W.2d 47 (Tex. App. 1982). In the Trickey case, a Texas court ruled that a state’s right to regulate marriage and divorce is the same whether a marriage is performed in a church by a minister or in a civil ceremony by a judge. As a result, a state’s divorce law can be applied to a Christian marriage performed in a church by a minister though one of the spouses maintains that the state’s divorce law conflicts with his or her religious beliefs.

“religious marriages” – the legal effect of noncompliance with marriage requirements

Pastors occasionally are called upon by parishioners to perform a “religious” marriage ceremony without complying with the legal requirements for a valid marriage prescribed by state law. There are many reasons for doing so. Consider the following examples:

  • One or both spouses is an undocumented alien.
  • Compliance with one or more of the civil law requirements is not possible. For example, a couple failed to obtain a license within the time prescribed by law, or one of the spouses is underage.
  • A pastor is asked to perform a marriage in another state in which nonresident pastors are not authorized to perform marriages.
  • A divorced spouse will lose alimony from her former husband if she remarries. A few states have enacted legislation that in some circumstances permits the provision of support (sometimes called “palimony”) from one former partner to the other. Conditions apply.
  • A divorced spouse will lose insurance or other benefits in the event of remarriage.
  • A couple believes that their Social Security retirement benefits will be higher if they are not legally married.
  • A couple regards the civil law requirements for marriage as an unnecessary nuisance, or even an unwarranted government intrusion into an essentially religious ceremony.

Whatever the reason, pastors should understand that officiating at a religious marriage that fails to comply with the civil law requirements for a marriage may not be treated as a valid marriage under state or federal law, and this can have several unintended consequences, including the following:

  • Pastors may be subject to criminal penalties (typically a misdemeanor involving a fine or short prison sentence) under state law for performing a marriage that does not comply with state law. It is imperative for pastors to understand the possible application of such penalties before performing a religious marriage.
  • A religious marriage that does not comply with civil law requirements may preclude one spouse from suing for money damages based on “loss of consortium” for injuries sustained by the other.
  • In general, your tax filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between two persons as husband and wife. You are considered unmarried for the whole year if, on the last day of your tax year, you are unmarried. State law governs whether you are married or legally separated under a divorce or separate maintenance decree. An unmarried couple may not file a joint tax return as a married couple. Each files an individual tax return.
  • If a couple is “considered married” for the whole year they can file a joint return, or separate returns. A couple is “considered married” for the whole year if on the last day of the tax year they were living together in a common law marriage recognized in the state where they live or in the state where the common law marriage began. Only nine states currently recognize common law marriages, and in many of these states only some common law marriages are recognized.
  • An unmarried person may be able to file as head of household if certain conditions are met
  • An unmarried couple cannot claim each other as an exemption on their individual tax returns.
  • An unmarried couple cannot claim each other as a dependent on their individual tax returns, unless certain conditions are met.
  • Unmarried persons cannot combine tax deductions, and cannot claim expenses paid by their partner.
  • The phaseout for an IRA deduction begins at a lower amount of income for unmarried persons than for married persons.
  • Married spouses generally avoid estate taxes upon the death of the first spouse. This is not necessarily the case with unmarried partners.
  • Married spouses generally can transfer property back and forth without gift taxes due to the unlimited marital deduction. This is not the case with unmarried partners.
  • An unmarried partner generally cannot receive death benefits payable as a result of the death of the other partner. There is an exception for couples who have a “common law marriage” recognized under state law. However, these marriages are recognized in only nine states, and conditions apply.
  • Unmarried partners can execute wills (or other legally enforceable instruments) that leave some or all of their estate to a surviving partner. However, without a will, a deceased partner’s estate that is not otherwise disposed of will be distributed according to the law of intestacy. Unmarried partners have no rights under intestacy laws. A few states have passed laws that permit domestic partners to receive a share of a deceased partner’s estate.
  • If an unmarried couple ends their relationship, there generally is no right of alimony or support from one former partner to the other. A few states have enacted legislation that in some circumstances permits the provision of support (sometimes called “palimony”) from one former partner to the other. Conditions apply.

What is the legal effect of a marriage that does not comply with the requirements specified by state law? The courts have reached different conclusions in such cases.

Case studies

An Arizona court upheld the validity of a marriage despite a number of technical violations of state law. The court noted that a failure to return a marriage license to the county clerk may expose an officiating pastor to criminal liability, but it does not affect the validity of the marriage.16 Barbosa-Johnson v. Johnson, 851 P.2d 866 (Ariz. App. 1993).

An Ohio court ruled that a marriage was valid even though the minister who solemnized it was not licensed to solemnize marriages as required by state law. The court acknowledged that ministers must receive a license from the secretary of state in order to legally solemnize marriages in Ohio. However, it concluded that marriages performed by ministers without a license from the secretary of state were “voidable” rather than “void.” A voidable marriage is valid when entered and remains valid until either party secures a lawful court order dissolving the marital relationship.17 Dodrill v. Dodrill, 2004 WL 938476 (Ohio App. 2004) (In support of its decision, the court noted that other states have addressed the validity of marriages performed by a minister not legally authorized to solemnize marriages. Courts in Maryland, Texas, Nebraska and Wisconsin “have found the marriage voidable when an unauthorized person solemnizes it,” while courts in North Carolina, New York and Maine have found this type of marriage void.”).

A Tennessee court ruled that a marriage was valid despite the husband’s claim that the officiating clergyman was not qualified to perform marriages and had failed to return a signed marriage license to the county clerk within three days of the marriage as required by law.18 Aghili v. Saadatnejadi, 958 S.W.2d 784 (Tenn. App. 1997).

A Kentucky court ruled that a couple who participated in a “religious marriage” without obtaining a marriage license from the county clerk were not legally married.19 Pinkhasov v. Petocz, 331 S.W.3d 285 (Ky. App. 2011).

The Nebraska Supreme Court ruled that a marriage of 26 years was valid despite the fact that the judge who performed the marriage ceremony failed to return a certificate of marriage to the county clerk as required by law.20 Vlach v. Vlach, 2013 WL 3113261 (Neb. 2013).

A North Carolina court ruled that the failure of a couple to obtain a valid marriage license prior to their wedding will not invalidate the wedding, but may expose the officiating minister to criminal prosecution pursuant to state law.21 In re Estate of Peacock, 788 S.E.2d 191 (N.C. App. 2016).


1. The Supreme Court’s Same-Sex Marriage Ruling

In a 5-4 ruling in 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.22 Obergefell v. Hodges, 135 S. Ct. 2584 (2015).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.

the Supreme Court’s decision

The Court concluded that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. … State laws … are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”

The Court briefly addressed the issue of religious freedom as follows:

It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex. (emphasis added)

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

These four questions are addressed below.

(1) Will ministers be subject to civil or criminal liability for refusing to perform same-sex marriages 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:

a. 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 consistently with their religious beliefs. Consider the following:

In one of the Supreme Court’s earliest and most expansive interpretations of the First Amendment’s guaranty of religious liberty, the Court observed:

But it is a very different thing where a subject matter of dispute, strictly and purely ecclesiastical in its character-a matter over which the civil courts exercise no jurisdiction-a matter which concerns theological controversy, church discipline, ecclesiastical government or the conformity of the members of the church to the standard of morals required of them-becomes the subject of its action. It may be said here, also, that no jurisdiction has been conferred on the tribunal to try the particular case before it, or that, in its judgment, it exceeds the powers conferred upon it.23 Watson v. Jones, 80 U.S. 679, 733 (1871).

In a unanimous decision in 2012, the Supreme Court affirmed the so-called “ministerial exception” to employment discrimination laws.24 E.E.O.C. v. Hosanna-Tabor Church and School, 132 S. Ct. 694 (2012).The Court concluded:

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

The ministerial exception, which is rooted in the First Amendment’s religion clauses, prevents the civil courts from resolving employment discrimination disputes between churches and clergy. This will protect the decisions of churches and religious denominations regarding the selection, ordination, and discipline of clergy on the basis of sexual orientation or any other condition or status. And, it supports the exclusive autonomy of churches to resolve issues of discipline and doctrine which, at least indirectly, protects decisions by clergy regarding who they will, or will not, marry.

b. Other grounds for not performing marriages have never been questioned

Clergy routinely decline to perform some marriages based on their religious beliefs. To illustrate, some ministers refuse to perform some or all of the following marriages:Marriages between more than two persons (bigamy and polygamy).Marriages between a parent and child (incest).Marriages between siblings (incest).Marriages between first cousins (even though now allowed in at least 21 states).Marriages in which one or both spouses is under age.Marriages in which one or both spouses was previously married and divorced.Marriages in which one or both spouses is not a member of the pastor’s faith (i.e., ” Do not be yoked together with unbelievers. For what do righteousness and wickedness have in common? Or what fellowship can light have with darkness?”) (NIV).Marriages in which the pastor believes one or more both spouses, while of legal age, are too spiritually immature to enter into so important a relationship.

In the 238-year history of this country, no minister has ever 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 should be viewed in the same light. If clergy can be found liable for refusing to perform same-sex marriages on religious grounds, then they are exposed to liability for refusing to perform any marriages as a result of their religious beliefs, including those described above.

c. 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.” Consider three typical examples of such accommodations:

The Maryland legislature passed the “Civil Marriage Protection Act” in 2012, legalizing same-sex marriage. The Act contains the following provision:

An official of a religious order or body authorized by the rules and customs of that order or body to perform a marriage ceremony may not be required to solemnize or officiate any particular marriage or religious rite of any marriage in violation of the right to free exercise of religion guaranteed by the First Amendment to the United States Constitution and by the Maryland Constitution and Maryland Declaration of Rights. Each religious organization, association, or society has exclusive control over its own theological doctrine, policy teachings, and beliefs regarding who may marry within that faith. An official of a religious order or body authorized to join individuals in marriage … and who fails or refuses to join individuals in marriage is not subject to any fine or other penalty for the failure or refusal.

A Minnesota statute legalizing same-sex marriage provides:

Each religious organization, association, or society has exclusive control over its own theological doctrine, policy, teachings, and beliefs regarding who may marry within that faith. A licensed or ordained member of the clergy or other person authorized … to solemnize a civil marriage is not subject to any fine, penalty, or civil liability for failing or refusing to solemnize a civil marriage for any reason.

In 2011 the New York legislature enacted the Marriage Equality Act which recognizes same-sex marriages. The Act contains the following section: “A refusal by a clergyman or minister … to solemnize any marriage under this subdivision shall not create a civil claim or cause of action or result in any state or local government action to penalize, withhold benefits or discriminate against such clergyman or minister.”25 N.Y. Domestic Rel. Law § 11.

The Supreme Court’s discussion 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.

d. Justice Thomas’ dissenting opinion

Justice Thomas, in his dissenting opinion, made the following observation: “Concerns about threats to religious liberty in this context are not unfounded. During the hey-day of antimiscegenation laws in this country, for instance, Virginia imposed criminal penalties on ministers who performed marriage in violation of those laws, though their religions would have permitted them to perform such ceremonies.”26 Va. Code Ann. §20-60 (1960).

These penalties were never reviewed or affirmed by the United States Supreme Court or any other federal court, and so they provide little if any precedential support for imposing criminal penalties or civil liability on clergy who refuse to perform same-sex marriages.

e. Conclusion

In conclusion, ministers should not be concerned about personal liability, either criminal or civil, for refusing to perform any marriage, including a same-sex marriage, in violation of their religious beliefs. Yes, same-sex couples now have a constitutional right to marry, but the same Constitution also protects the free exercise of religion, and perhaps the most fundamental expression of this right is the unfettered freedom of ministers to perform the sacerdotal functions of their faith, including marriage, consistently with their religious convictions.

(2) Can a church be penalized or sued for refusing to host a same-sex marriage 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.

Many examples could be cited of laws that treat churches that enter the commercial marketplace to engage in revenue-generating activities less favorably than churches that do not do so. For example, state laws that exempt church property from taxation typically deny the exemption to churches that rent their property for commercial gain, and a church’s exemption from federal income taxation can be lost if it engages in more than insubstantial unrelated income-generating activities.

What about churches that allow community groups to use their facilities at no cost or for a nominal fee designed to cover expenses? Unfortunately, there are no answers since no court has addressed this question. But, the courts likely would regard such churches as closer to those that allow marriages for members only. The key consideration is that they have not intentionally entered the commercial marketplace to generate revenue.

(3) Are the tax exemptions of religious schools and churches 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 its interpretation of the Bible clearly articulated in its governing documents.27 Bob Jones University v. United States, 461U.S. 574 (1983).

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.

During the oral arguments before the Supreme Court prior to the same-sex marriage ruling, the following exchange occurred between Justice Alito and Solicitor General Verrilli (who was asking the Court to recognize same-sex marriage as a constitutional right):

Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax–exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?

Solicitor General Verrilli: You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is-it is going to be an issue.

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. This would include the Roman Catholic Church, based on its refusal to ordain female priests, and any church that discriminates against persons based on sexual orientation or sexual identity. Like Bob Jones University, they would be free to continue their discriminatory practices, but at the cost of losing the privilege of tax-exempt status. Chief Justice Roberts addressed this issue in his dissenting opinion:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

What would happen if the IRS revoked a church’s tax-exempt status? What would be the consequences? Loss of a church’s exempt status would have a variety of negative consequences, including some or all of the following.

  • The church’s net income would be subject to federal income taxation.
  • The church’s net income would be subject to income taxation in many states.
  • Donors no longer could deduct charitable contributions they make to the church.
  • The church would be ineligible to establish or maintain 403(b) tax-sheltered annuities.
  • The church could lose its property tax exemption under state law.
  • The church could lose its sales tax exemption under state law.
  • The church could lose its exemption from unemployment tax under state and federal law.
  • The church’s status under local zoning law may be affected.
  • The church could lose its preferential mailing rates.
  • The church could lose its exemption from registration of securities under state law.
  • Nondiscrimination rules pertaining to various fringe benefits (including an employer’s payment of medical insurance premiums) would appl
  • In some cases a minister’s housing allowance may be affected.
  • In some cases the exempt status of ministers who opted out of Social Security may be affected.
  • The significant protections available to a church under the Church Audit Procedures Act would not apply.
  • The exemption of the church under the state charitable solicitation law may be affected.
  • The exemption of the church from the ban on religious discrimination under various federal and state employment discrimination laws may be affected.
  • The exemption of the church from the public accommodation provisions of the Americans with Disabilities Act may be affected.

Clearly, any activity that jeopardizes a church’s exemption from federal income taxation is something that must be taken seriously.

(4) Church bylaws

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 adopted “to prescribe the rights and duties of the members with reference to the internal government of the corporation, the management of its affairs, and the rights and duties existing among the members. Bylaws are self-imposed rules, resulting from an agreement or contract between the corporation and its members to conduct the corporate business in a particular way. Until repealed, bylaws are the continuing rule for the government of the corporation and its officers.”28 Schraft v. Leis, 686 P.2d 865 (Kan. 1984).

This definition suggests that matters not related to the internal governance and administration of a church are more appropriately addressed elsewhere, such as in resolutions or policies.

One of the reasons for addressing some items in resolutions and policies is that they can be amended more easily than waiting for the next annual business meeting to amend the bylaws.

Examples of items that are not directly related to internal governance and administration, and that often are addressed in resolutions and policies, include:

  • Personnel policies for church employees, addressing such items as compensation, benefits, religious preferences, discipline and terminations, sexual harassment, and employment standards. These matters are best addressed in a written policy.
  • Rules for the selection and supervision of volunteers who will work with minors are best addressed in a written policy.
  • A marriage policy defining marriage as a union between one man and one woman.

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 the courts. As noted previously, the Supreme Court ruled in 1983 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.

Next up: polygamy and incest

Chief Justice Roberts, in his dissenting opinion, noted that the Court’s ruling will open the door to a variety of other marriages heretofore rejected by most religions and cultures throughout human history:

One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “there is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?

I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.

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