By: H. Robert Showers, Esq.
3rd Quarter, 2015
In November 2003, Massachusetts became the first state to recognize same-sex marriage. In 2013, the United States Supreme Court addressed whether state governments must recognize marriage between persons of the same sex. In United States v. Windsor, the Supreme Court narrowly ruled (5-4) that it was unconstitutional for the federal government to define marriage as only existing between a man and a woman. What comes next in Obergefell for state governments is predictable but astounding.
While the definition of marriage had normally been left to the States, Congress had passed a law defining marriage as existing only between a man and a woman for the purposes of hundreds of federal laws that allocated benefits and responsibilities based on marital status. Justice Kennedy wrote the majority opinion and emphasized that marriage had always been a matter of definition by the States. He also claimed that no rational basis existed for the federal government to define marriage as between only a man and a woman. Instead, he asserted that Congress’s only real reason for the law had been to demean persons who engaged in same-sex conduct. In short, the Supreme Court majority said that the traditional definition of marriage was allegedly based on animus toward homosexual persons and not on any other rational basis-amazing!
Since the Windsor decision did not address whether the States could define marriage as only between a man and a woman, many lower federal courts applied Windsor’s “animus” rationale to strike down about half of the States’ laws that defined marriage as between only a man and a woman.
On June 26, 2015, in Obergefell v. Hodges, the Supreme Court narrowly ruled (5-4) that it was unconstitutional for any state government to define marriage as only between a man and a woman. Justice Kennedy, again writing for the majority, relied on two provisions of the Constitution, the Fourteenth Amendment’s Due Process Clause and its Equal Protection Clause, to find that the States cannot have laws that define marriage as only between a man and a woman. Justice Kennedy claimed that the right to marry is a fundamental right that cannot be denied to same-sex couples for four reasons:
1) personal choice regarding marriage is inherent in the concept of individual autonomy;
2) marriage is a two-person union unlike any other in its importance to the committed individuals;
3) marriage safeguards children and families; and
4) marriage is a keystone of our social order.
Of course, even if accurate, these four descriptions of marriage did not answer the question of whether the United States Constitution prohibits all fifty States from defining marriage as only between a man and a woman, as marriage has been defined in most, if not all, societies for millennia. Emphasizing this historical understanding of marriage, the four other Supreme Court justices issued powerful dissents. They emphasized that the federal Constitution left the definition of marriage to the States and to the People, and should not be dictated by five unelected judges. Instead, the democratic process should have been allowed to play out, as it had been doing for the past twenty years, in the state legislatures, state courts, and public debate. 
The four dissenting justices all expressed concern for the religious freedom of persons holding the traditional Christian understanding of marriage. The majority opinion acknowledged that “[t]he 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.” But none of the dissenting justices thought the majority had gone far enough to assuage religious believers’ legitimate concerns about practicing their faith under a constitutional regime that requires all States to recognize same-sex marriage.
The dissenters’ religious liberty concerns were fueled by answers given to their questions at the Obergefell oral argument by the United States’ top attorney, Solicitor General Verrilli. In response to Justice Alito’s question, General Verrilli had agreed that religious colleges’ tax-exempt status would likely become an issue for colleges that prohibited same-sex conduct by their students. In response to Chief Justice Roberts’ question, General Verrilli avoided answering whether religious colleges would be allowed to prohibit same-sex couples in their married housing facilities. As Justice Thomas observed in his dissent, it is “all but inevitable” that the new civil definition of marriage and the religious definition of marriage “will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.”
The Supreme Court made same sex marriage a fundamental right in Obergefell but left many unanswered questions for future courts and legislatures and hopefully the people in constitutional amendments to resolve. For example, can churches, Christian Schools and religious ministries lose their tax exempt status when they refuse membership, employment, leadership, use of facilities and weddings based on their sincerely held religious belief that biblical marriage is between one man and one woman and that sex outside of marriage is a sin.
If your church is concerned about how same sex marriages may impact its religious liberties as a result of these decisions, it should consider taking some of the following steps.
- Draft a clear and concise clause defining marriage that addresses not only the definition of marriage but also the scope of sexual corruption/deviation
Your church should be careful to draft a clause defining marriage that does not single out homosexuals or homosexual activity in a way that could practically alert someone to a potential claims of discrimination based on sexual orientation. Although sexual orientation is not currently a “protected class” under federal law, if your church singles out homosexuals as the target of your policies, you may trigger a lawsuit or a threatened lawsuit that can be enormously expensive to handle and dismiss, even if you are successful in the end.
Moreover, Scripture does not single out homosexuality as the only aspect of a non-Christian lifestyle that Christ opposes, or even the most egregious non-Christian behavior. In fact, Scripture’s teaching on sexuality is far broader than homosexuality. To be true to Scripture, your definition of marriage should recognize and describe Scripture’s broad teaching against sexual sin and sexual perversion. Including this scope will help to confirm that your opposition to homosexuality stems strictly from your religious belief in what Scripture teaches, not in any prejudice against homosexuals themselves or their particular lifestyle. If, in the future, sexual orientation does become a federally protected class, having this broad language will help to protect the church against the very real threat of litigation for their position on homosexuality.
While we can propose many different doctrinal statements to be tailored to the church and religious nonprofit’s beliefs and culture, it should contain key Biblical provisions that define marriage and sexual behavior outside of marriage that is sinful such as the following:
We believe that Marriage unites one man and one woman in a lifetime commitment to each other (Genesis 2:23-24; Matthew 19:4-6). Marriage provides for intimate companionship, pure sexual expression (Genesis 2:25; Ephesians 5:31-33), procreation, and reflects the relationship of Christ and the church (Genesis 1:28; Proverbs 5:15-19; 1 Corinthians 7:1-5).
We believe that God has commanded that no sexual activity be engaged in outside of a marriage between one man and one woman. We believe that any form of homosexuality, lesbianism, bisexuality, bestiality, incest, fornication, adultery, and pornography are sinful perversions of God’s gift of sex. We believe that God disapproves of and forbids any attempt to alter one’s gender by surgery or appearance (Genesis 2:24; Genesis 19:5, 13;Genesis 26:8-9; Lev. 18:1-30; Romans 1:26-29; 1 Cor. 5:1; 6:9; 1 Thess. 4:1-8;Hebrews 13:4). Such sinful pattern if not repented will be a barrier to membership, employment and leadership in a body of believers.
Such a statement should also define who is the final decision maker about spiritual definitions and authority as it comes to your church theological stance-pastors, elders or some other group. This statement should be in your governing documents, preferably your statement of faith, and throughout your policies as discussed below.
- Look at your policies to see where you need to include this definition of marriage and tie your religious beliefs to sexual conduct and lifestyle.
There are five broad areas that need reviewed: bylaws and governing documents; statement of faith and membership covenant; employee handbook and code of conduct; and facilities use and wedding policies.
- Statement of Faith and membership in governing documents
Your statement of faith may be included in your bylaws or in a completely separate document. Either way, this defines the crux of the church’s religious belief and should have a clear statement on marriage. The statement of faith ties into almost all other parts of church life, including membership, employment, and church use. These policies will likely refer back to your Statement of Faith, so it is essential that you address marriage here.
As a Statement of Faith, it is fundamental that you have Scripture verses littered throughout. Many churches put minimal or no Scripture references in their statement of faith, but this is one situation where less is not more. Do not be overly concise. While there is no need for a book-length theological treatise, a substantial list of applicable Scriptures following a religious doctrinal statement in your Statement of Faith will go a long way towards showing the court that your issue involves matters far outside the realm of the law.
- Church Bylaws and other governing documents
When faced with potential litigation, church constitution and/or bylaws help the church proactively frame the argument not as a matter of discrimination against individuals, but rather as a church abiding by and adhering to core religious beliefs. This is key to make sure that the legal protections given to a church—all of which center around sincerely held core religious beliefs—remain in place. The governing documents can contain your Statement of Faith, or reference it as a requirement for membership in the church, employment in the church, and conduct within the church.
- Employment Handbook and employee code of conduct
This is a particularly important area for a church to define what it believes about homosexual beliefs, conduct, and lifestyle. Without requiring all employees to adhere to the Statement of Faith, it is very difficult to defend against allegations that the church’s employment decisions were taken reacting to an employee’s belief about homosexuality or their lifestyle choice or their sexual orientation. The employee handbook can require all employees to abide by the code of conduct for the church, which should reference the Statement of Faith and the church’s position on homosexuality and sexuality in general. This can be a large factor in determining the true motivation behind employment decisions.
For example, if an employee who leads the youth ministry comes out as a homosexual, the church’s decision to terminate this employee could be seen either as discrimination based on sexual orientation, or as discrimination against someone who does not share the same religious beliefs as the church. If the church has a code of conduct for all employees that prohibits them from living a lifestyle that disagrees with the Statement of Faith, it is much easier to base the employment decision on religious beliefs and protect the church’s right to discriminate based on their religious beliefs.
- Facilities use policies and agreements
Fourth, it is important to clarify in church policies that all uses of the church facilities, need to be done in a way that honors the church’s statement of faith and religious beliefs. How your church’s facilities will be offered for use is a question that each church needs to consider in light of the recent Supreme Court decisions and potential changes in the future, to address how the church want to offer its facilities to the community in a way that honors its religious beliefs. To protect against a “public accommodation” legal challenge, churches should have a written facility use policy, including a requirement that their facilities may be used only for purposes and in ways consistent with their doctrinal beliefs, as found in the Bible and the church’s governing documents, particularly with respect to sexuality and other conduct. A church’s permitted uses need not necessarily all be worship or Bible study, but they should at least be in furtherance of the church’s religious mission (e.g., outreach to the homeless or to teens needing a safe refuge, etc.). A statement that the facility uses will be in accordance with the Bible is better than no statement, but it is wise to be more specific about how the church understands the Bible’s teachings on specific issues that might arise with references to the Bible and specific church governing documents. See sample facility use policy at the end of this document.
In addition, a church should have written agreements with each user of its facility (whether long-term or short-term, whether paid or unpaid). Such agreements should include language reflecting how such facility use ties into the church’s mission and understanding of Biblical teachings. The agreement should require Biblical dispute resolution of any disagreement that arises. In addition, the agreement may include other key considerations such as allocation of responsibilities, fees charged (if any) and other typical provisions for any space usage agreement (as may be developed by qualified legal counsel). In particular, a practice of charging fees may have resulting implications regarding “public accommodation” and property tax exemption issues, both of which warrant careful evaluation by experienced legal counsel.
- Wedding policies
Churches need to have religious standards for all weddings – not just events for their members (as well as for other special events like funerals and baptisms). By comparison, if a church allows couples to get married at its facility without any inquiry as to their religious beliefs, then the proverbial door may be open to the legal argument (albeit not yet successfully asserted) that the church is instead a “public accommodation” and therefore subject to sexual orientation discrimination prohibitions. However, if a church believes that its ministry should include marrying couples that do not share its religious beliefs, then it is important that its policy explain the church’s religious beliefs as to why it is better for non-church couples to marry than not to marry, and why those religious beliefs apply to heterosexual couples but not homosexual couples.
To reduce the risk of getting caught up in such potential claims, a church should develop a wedding policy (and/or bylaw amendment) that includes religious elements reflective of Biblical teachings. It may be helpful as well not to charge money for weddings, except for janitorial or related facility usage expenses. Any additional cost for pastoral services may be better absorbed into the pastor’s overall salary. Counseling requirements may be helpful as well, again to reflect a church’s religious standards and beliefs surrounding marriage.
- Increasing SOGI Protection in Public Accommodations, Housing, and Employment mandates caution by churches and religious ministries
While sexual orientation and gender identity (SOGI) are not yet protected classes under most federal laws, over 20 states and many local jurisdictions have passed laws making sexual orientation and/or gender identity protected classifications. Generally speaking, such laws make discrimination on the basis of sexual orientation illegal with respect to three legal issues: 1) public accommodations; 2) housing; and 3) employment. Narrow exceptions may exist for churches (as well as for smaller-sized employers) and other religious institutions, but the protections are highly dependent on the specific laws at issue.
On the other hand, many states and many local jurisdictions do not have laws that recognize sexual orientation or gender identity as protected classifications. Whether such laws exist in a church’s state or local jurisdiction is very important in determining churches’ legal exposure. Even so, it is wise for churches in such locations to take the steps mentioned below, particularly in light of current general trends favoring such new laws.
The term “public accommodation” generally means property that is made open to the public, such as stores, restaurants, and hotels. To date, a U.S. church has not been deemed to be a “public accommodation.” By contrast, educational facilities may be considered to be places of public accommodation, and community centers, camps, museums, and parks may be as well. Accordingly, serious concern may be justified for churches and church-related facilities, particularly if they liberally open their doors to others or meet in public schools or other public places for worship. Therefore, it may only be a matter of time before a litigant seeks to include churches within the definition of “public accommodation.”
Employment issues are more developed for religious organizations including churches. Churches have at least two basic federal protections for their employment decisions. First, the federal law known as Title VII allows churches to require all employees to conform to their religious doctrine. In other words, churches may “discriminate” on the basis of religion in their employment practices as to all employees. But notably such federal protection applies only for federal discrimination claims; it does not protect against claims brought under state or local discrimination laws, for which similar protections may or may not exist.
Second, with respect to any discrimination claim, churches have much broader leeway in making employment decisions regarding employees who are “ministers” in the church. The U.S. Supreme Court affirmed churches’ religious freedom protections under the “ministerial exception,” in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. In that 2012 decision, the Court barred a disability discrimination claim by a teacher at a church school, thereby recognizing that churches must be left alone with respect to their own “minister” employment matters. Consequently, defining staff members (such as the youth or children’s director in the above example) as “ministers,” along with accompanying Biblical standards requirements, may significantly promote religious freedom and protect against legal liability.
The legal landscape continues to evolve, but God is unchanging. Regardless of what a church may or may not do to protect its religious liberty interests, God can provide a hedge of protection for believers. Correspondingly, however, as Christians we are to expect persecution for our beliefs and actions. So we need to remain prayerful, act prudently, and continue seeking Godly guidance. the Christian Legal Society ( CLS) is taking the lead as a broad base of 10,000 plus Christian attorneys across the nation and presenting another seminar on Same Sex Issues for Christian schools and colleges on Sept 3, 2015 and another for Religious ministries and nonprofits on October 20, 2015, so mark your calendars and register at www.religiouslibertyguidance.org. You may also want to download other white papers, PowerPoints and frequently asked questions in these areas.
Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Robert Showers at firstname.lastname@example.org, Daniel Hebda at email@example.com or Justin Coleman at firstname.lastname@example.org for the expanded legal memo with various options for protective language and/or to retain SimmsShowers law firm for specific
legal advice tailored to your greater needs concerning which risk management strategy that is best for your church or organization.
 133 S. Ct. 2675 (2013)
 2015 WL 2473451 (June 26, 2015).
 Id at 3
 Id at 5
 Such considerations for religious schools and other faith-based organizations are addressed in much greater detail in separate written guidance, to be issued by Christian Legal Society later in 2015.
 132 S. Ct. 694 (2012).
 This “ministerial exception” religious protection extends to the state level and sometimes beyond the church context to include faith-based organizations. See, e.g., Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829 (6th Cir. 2015).