Same-Sex Marriage

Will pastors have to perform marriages contrary to their religious beliefs?

In 2010 a federal district court judge in San Francisco ruled that Proposition 8, by which the voters of California overturned a state supreme court decision recognizing a state constitutional right of same-sex couples to marry, was itself a violation of the due process and equal protection guarantees of the United States Constitution. The judge responded to the concern that pastors would now have to perform marriages contrary to their religious beliefs by noting:

Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law ….

Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.

This was not the first court to rule that same-sex couples have a constitutional right under state or federal law to marry. Four other courts have done so. In each case, however, the court stressed that its ruling did not compel clergy to perform marriages contrary to their religious beliefs. To illustrate, the California Supreme Court, in its 2008 ruling recognizing a constitutional right of same-sex couples to marry, declared:

Affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.

This language was quoted with approval by the federal district judge in his opinion striking down Proposition 8.

The Connecticut Supreme Court in 2008 ruled that same-sex couples have a constitutional right under the state constitution to marry. The court observed:

Religious autonomy is not threatened by recognizing the right of same-sex couples to marry civilly. Religious freedom will not be jeopardized by the marriage of same-sex couples because religious organizations that oppose same-sex marriage as irreconcilable with their beliefs will not be required to perform samesex marriages or otherwise to condone same-sex marriage or relations. Because, however, marriage is a state sanctioned and state regulated institution, religious objections to same-sex marriage cannot play a role in our determination of whether constitutional principles of equal protection mandate same-sex marriage.

The Iowa Supreme Court in 2009 ruled that same-sex couples have a constitutional right under the state constitution to marry. The court observed:

It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation.

The belief that the “sanctity of marriage” would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrainedeven fundamental-religious belief ….

We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman. This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation. This proposition is the essence of the separation of church and state ….

In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—religious or otherwise— by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.

In ruling that same-sex couples have a constitutional right under the state constitution to marry, the Massachusetts Supreme Court observed: “Our decision in no way limits the rights of individuals to refuse to marry persons of the same sex for religious or any other reasons. It in no way limits the personal freedom to disapprove of, or to encourage others to disapprove of, same-sex marriage. Our concern, rather, is whether historical, cultural, religious, or other reasons permit the State to impose limits on personal beliefs concerning whom a person should marry.”

These cases constitute unequivocal recognition of two fundamental principles: (1) no church is required to perform a same-sex marriage, or any other marriage, that violates its religious beliefs; and (2) no minister is required to perform a marriage in violation of his or her religious beliefs.

It also should be noted that several decisions of the United States Supreme Court strongly suggest that the First Amendment guaranty of religious freedom permits clergy to perform marriages consistently with their religious beliefs. To illustrate, in 1952 the Supreme Court observed that its prior decisions “radiate a spirit of freedom for religious organizations, and independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952). Such cases strongly suggest that the civil courts are barred by the First Amendment guaranty of religious freedom from compelling ministers to perform marriages in violation of their religious beliefs, or to subject them to civil or criminal liability for refusing to do so.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

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