The Legal Ramifications of Same-Sex Marriage on the Church
By Raul Rivera
Same-sex marriage is a divisive topic in America. I believe that it is a struggle for the mindset of American culture. In the near future, an ultimate showdown for the Church will occur because the passage of legislation that makes same-sex marriage a constitutionally protected right will place a very serious burden on faith based organizations and churches.
State laws on same-sex marriage and orientation
To date, Massachusetts, Connecticut, Iowa, New Hampshire, Vermont, and Washington D.C., including the Coquille Indian Tribe in Oregon, allow marriages for same-sex couples. ifNew York, Rhode Island, and Maryland recognize same-sex marriages from other states, but do not allow them to be performed in their own states. New Jersey, California, Colorado, Hawaii, Maine, Maryland, Nevada, Oregon, Rhode Island, Wisconsin and Washington have created legal unions for same-sex couples.
Hiring discrimination based on sexual orientation
Twenty-one states and the District of Columbia have policies to protect against employment discrimination based on sexual orientation. This tide of legislative action will soon create issues similar to that of England, which requires churches and other religious organizations to hire homosexuals because they are a protected class.
For the last several years, we have lived in relative peace with the government concerning these issues. However, that coexistence is going to clash soon because marriage affects every area of life from taxes and health care, to religion and family law. I see a day coming where people of faith, Christians in particular, will be treated as outcasts simply because they oppose same-sex marriage as doctrinally acceptable. Let me explain.
The crux of the matter
The crux of the matter will be in the 1st amendment that prohibits the making of any law "respecting an establishment of religion", or impeding the free exercise of religion, and the 14th amendment, which provides that "no state shall deny to any person within its jurisdiction the equal protection of the laws of the constitution."
On one hand, the government has a responsibility to uphold religious freedom (1st amendment), and on the other hand, it cannot deny equal protection of the laws (14th amendment). If proponents of same-sex marriage, get the courts to declare it a constitutionally protected right. This will create a constitutional conflict. When faced with conflicts like these, the courts have relied on a stringent standard of judicial review known as the strict scrutiny test. In this test, the court has to weigh out if the state has a compelling interest to enforce a certain law that places a burden on an already existing constitutionally protected activity. When it comes to same-sex marriages, this test will be relied upon to measure whether the state's compelling interest to protect the new "constitutional" rights of homosexuals and same-sex marriage partners warrants placing a burden on religiously motivated practice. Most attorneys and legal analysts on both sides of the issue believe that most Federal courts will almost always rule against religious institutions and practices.
The Defense of Marriage Act
On September 21, 1996, Congress passed the Defense of Marriage Act. The law was designed to allow states the right to decline recognition of same-sex marriages that were sanctioned in other states. It also defined marriage as the "legal union between one man and one woman as husband and wife." Though the law had overwhelming congressional support and was believed by many scholars to be constitutionally sound, in July of 2010, a federal court ruled that the definition of marriage contained in the law was unconstitutional. This ruling, though under appeal, continues to fuel the drive to making same-sex marriage a constitutionally protected right. Rulings like the one in July of 2010 will continue to pave the way until the Supreme Court weighs in possibly declaring same-sex marriage a constitutionally protected right and homosexuals a protected class of individuals.
If this happens it will become fundamental public policy and churches that oppose same-sex marriage will face a future of persecution by loss of their tax-exempt status. One example is Bob Jones University. They had a doctrine that prohibited interracial marriages. Though I do not agree with this doctrine, it was a sincerely practiced belief of the school and they should have the right to practice it. However, the IRS revoked their tax-exempt status because the practice of their doctrine violated public policy and the Federal Tax Court agreed.
Judicial action
Of the states that allow same-sex marriages, three were because of judicial action. In each case the courts made provisions to ensure that religiously motivated practice would not be hindered.
In 2003, The Massachusetts Supreme Court in ruling on the constitutionality of same-sex marriage declared that no one will be forced to perform a same-sex marriage or prohibited from disapproving or encouraging others from disapproving.
In 2008, the Supreme Court of Connecticut in ruling in favor of same-sex marriage declared that religious organizations that oppose same-sex marriage as irreconcilable with their beliefs will not be required to perform or otherwise condone same-sex marriage.
And finally, in 2009, the Iowa Supreme Court ruled that religious organizations for religious purposes can still define marriage as a union between a man and a woman even though the courts declare same-sex marriage as constitutional.
Analyzing the three rulings, two main principals, shown below, clearly stand out.
1. No church will be required to perform same-sex marriages.
2. No minister shall be required to perform same-sex marriages.
These provisions fall short of protecting religious organizations from further legal trouble. A quick look at these two provisions will reveal that future pitfalls for churches and ministries lie ahead. There are two other fundamental issues that the courts did not answer which can cause far-reaching devastation to churches.
1. Will churches be required to hire homosexuals?
2. Will churches be required to allow the use of their facilities for the performance of same-sex marriages if they also allow heterosexuals to use their facilities?
Because of the conflict that exists between the 1st and 14th amendments of the Constitution, what happens to churches that allow their members and also the general public to rent their facilities for the performance of weddings? What happens when two people of the same sex ask to rent the church building for their wedding? What if they claim that they do not want the church to condone the wedding or any of its ministers to perform the ceremony; they just want to rent the building like everyone else? They state that they will bring their own "minister" and ensure that they comply with all the rules established for everyone else who usually rents the facility. This brings up a case where the equal protection clause of the Constitution could force the courts to rule that a compelling state interest to protect the constitutional right of a class of individuals outweighs the burden it places on religiously motivated practice.
Congressional intervention
If same-sex marriage becomes a constitutionally protected right, the only other option we will have is congressional intervention. Congress will have to step in and pass religious exemption laws to allow churches and other exclusively religious organizations the right to conduct their business and deny services based on sexual orientation. This will then trigger a new set of battles in the courts. In particular, there are four major areas that Congress will have to address that will affect churches and other religious organizations.
1. The right of churches to deny hiring homosexuals based on their sincerely held faith
2. The right for ministers to deny the officiating of same-sex marriages when asked to do so
3. The right for churches to deny recognition of same-sex marriages
4. The right to deny the use of church facilities and assets for the performance of same-sex marriages.
What does the church do to protect itself?
Between now and then, churches must be fully able to articulate their policies and beliefs concerning same-sex marriage. It is likely that your church has always had an unwritten and un-verbalized view on same-sex marriage. It is likely that you have always assumed it was a sin and therefore, you have never really had to articulate your church's official position. Well, those days have come to an end. Let me give you four things your church needs to do right now to strengthen its legal boundaries concerning same-sex marriage.
1. Write the church's official doctrine and belief concerning same-sex marriage.
2. Add a clause in your church's constitution and bylaws that prohibits the church or any of its ministers from performing same-sex marriages or that prohibits any of its members from entering into a same-sex marriage.
3. The same-sex marriage clause should also contain a provision that prohibits the use of the church's facilities or assets to condone and allow any activity that is condemned by the church's doctrines.
4. Finally, add a clause that officially requires the church to adopt a written hiring policy that prohibits the church from hiring homosexuals, whether practicing or not, and from hiring individuals who do not believe or have the conviction that homosexuality is a grave sin before God.
As always, make sure that all four of the steps listed above include language evidencing a sincere conviction based on Scripture. Quote as many Scriptures as possible to back up your position.
Why protect yourself
As the proponents for same-sex marriage continue to work hard to make same-sex marriage public policy, churches will very easily be in violation by merely denying use of its facilities. This will trigger a host of negative consequences in hiring practices and loss of tax-exempt status. We are one federal law or court ruling away from that becoming an everyday reality.
It is very important that your church or ministry's stance on this issue be made clear. In the likely case that Congress has to step in and grant religious exemptions, your church will be ready to take advantage of it. Moreover, all of your church's bylaws and articles of incorporation will show to have been on record with the IRS when you applied for 501(c)(3) status. Once you amend your corporate documents, IRS regulation will require you to submit those documents to the exempt organization unit for reconsideration. Now is the time to get that on record. It will give you a fighting chance to take advantage of religious exemption if it becomes necessary.