Religious Organizations and Gay Marriage

What did Obergefell say and not say about "marriage equality" and what should concerned religious organizations do next? 

The United States Supreme Court recently declared in Obergefell v. Hodges that all states must recognize same-sex unions to the same extent as traditional marriages. Here, we discuss possible legal implications of this decision for religious freedom for people of faith and religious institutions. This post provides an overview of the opinion, examines the opinion's impact on religious freedom, addresses some of the storms people of faith and religious organizations may soon see on the horizon, and provides some practical ways to prepare.

What did the Supreme Court actually hold?

The Supreme Court's actual holding was two-fold. First, the Court held that same-sex couples may exercise the fundamental right to marry. In practical terms, for states that had laws defining marriage as between one man and one woman, those laws were held invalid; same-sex marriage is now available nation-wide. Second, the Court held that a State must also recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed in another state. It is important to note that both these holdings apply to government action, not to private organizations or to individuals. That does not mean they won't be affected, but that some of these battles are still in the future.

Also, the Court suggested that sexual orientation is an immutable characteristic connected to a person's identity to be equated with liberty, which has continued to fuel the movement to enshrine the status at the federal level through legislation like the Employment Non-Discrimination Act (ENDA).

What did the Supreme Court not hold?

It is crucial to recognize what the opinion did not hold. First, the Court did not hold that laws defining marriage as between one man and one woman were irrational, motivated by nothing more than animus, despite using language suggesting that marriage laws were disparaging to same-sex couples. Even the majority opinion says, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises . . . .” Slip op. at 19. The court's opinion still leaves room for the argument that a traditional view of marriage is not necessarily motivated by invidious discrimination–and by way of extension, that policies and practices supporting that traditional view are not necessarily motivated by hate. 

Second, the Court did not hold that sexual orientation should be a new suspect class like race, religion, or national origin–entitled to special constitutional protection–even though it was asked to do so by the petitioners. This means that discrimination based on sexual orientation in employment, housing, and other areas that might otherwise be illegal under federal law, like Title VII or the Fair Housing Act, is not immediately actionable in court. (This may not be much comfort, because federal agencies like the EEOC are expanding their interpretation of Title VII to include sexual orientation and transgender. Also, other laws, like state statutes or local ordinances, might specifically forbid sexual orientation discrimination.)

Because the Court's holding was only directed to government action, whether private individuals and organizations must fall in line is far from clear. Almost undoubtedly lawsuits will follow to force private organizations to comply.

Why will this decision impact religious freedom?

This decision was a landmark one. Not simply because of what it decided, or how that decision was reached–although both are important and crucial for our society–but because of the implications for religious liberty.  As Justice Thomas remarked in his dissent, “[h]ad the majority allowed the definition of marriage to be left to the political process–as the Constitution requires–the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority's decision short-circuits that process, with potentially ruinous consequences for religious liberty.”

In other words, because the Supreme Court has made the issue of same-sex marriage one of federal, constitutional law–akin to saying it is written in the constitution itself–we as a society have not had the opportunity to grapple with what should be done when the right to same-sex marriage (now a constitutional, fundamental right) clashes with free exercise of religion (also a fundamental, constitutional right).

This question will be debated and will play out in protracted litigation. Some of the issues that may arise (some more likely than others) are as follows:

• What will happen when a religious college provides married student housing only to opposite-sex married couples?

• May religious adoption agencies refuse to place children with same-sex married couples?

• Will religious organizations, including churches, and religious schools and colleges, be faced with the loss of their tax exempt status if they adhere to a biblical view of marriage?

• Will pastors be forced to perform same-sex weddings?

• Will churches or other religious organizations be forced to host same-sex weddings in their facilities?

• Will insurance provide coverage for defending against lawsuits on these issues?

• Will religious organizations lose their tax exemptions?

“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,” Chief Justice Roberts remarked in his dissent. 

How can our religious organization prepare?

Religious institutions can take practical steps to assert their First Amendment rights in the face of this conflict. Religious institutions have a variety of constitutional, and federal and state law protections that are unique to them, primarily based on the First Amendment. These protections generally apply only to the extent that the religious organization's governing documents are truly based on religious practice and doctrine. The organization's views and policies on marriage and the family should be tied to biblical principles where possible and asserted as a religious value. Also, to be most effective, all policies should be interlocking and considered as a coherent whole. We do not recommend simply adding a policy here and there.

• Review all governing documents and policies that address marriage, biblical sexual ethics, and the family:
  • Statements of faith;
  • Statement of organizational authority on faith and conduct; 
  • Statements on marriage, gender, and sexuality;
  • Statement on human life;
  • Statements of membership;
  • Employee job descriptions;
  • Facility use policies; 
  • Codes of conduct; 
  • Disciplinary procedures;
  • Dispute resolution procedures and the like. 

• Proactively assess your risk for liability. Some organizations and practices are more likely targets for litigation stemming out of the same-sex marriage decision. Understanding where your organization falls in this continuum, and then addressing your exposure to risk with your insurer, is key for getting ahead of any problems. While at least one insurer responded that no coverage will be provided if a church is sued for refusing to perform a same-sex wedding, other insurers are providing special coverage. Evaluate whether you have religious freedom protection coverage that includes:
  • Coverage for your theological statements;
  • Coverage for your religious activities; and
  • Coverage for “discriminatory” acts arising out of your faith beliefs.

• Equally enforce rules. Religious institutions often get into trouble when they seem to be selectively enforcing their policies to the detriment of the LGBT community. Moral and theological stands should be consistently enforced according to the organization's beliefs.

• Emphasize the benefits that your ministry provides! Religious institutions provide a wide variety of tangible benefits, as well as an inherent benefit to society that cannot be overstated. Continuing to emphasize these facts will go a long way toward reminding us why your ministry is valuable and why we provide protection to religious organizations in the first place.

• Emphasize your testimony that Christ loves all. While many religious organizations and people believe that only a marriage between a man and woman is truly life-giving and reflective of God's image, believers should not let the emotional drama of the current debate draw them into seeing the LGBT community as enemies. Theological disagreement should be conducted in the same spirit of tender love that we hope people will use to approach our own sins and misunderstandings.

Will preparing be very expensive?

Evaluating your policies and positions will be expensive in terms of board and staff time. You should also have your proposed policies reviewed by an attorney that is familiar with nonprofit work and your ministry.

Both the Christian Legal Society and the Alliance Defending Freedom have prepared excellent booklets that review the rationale for certain policies and even provide sample policies. We recommend that you start with these sample policies, or with sample policies from organizations who have done their groundwork and are willing to share. This means your attorney can be available for advising and review, but will not have to undertake a complete drafting project.

That said, given that a lawsuit could be breathtakingly expensive and could destroy your ministry, the money spent to prepare and protect yourself is well-spent.

Here are some links to other resources

• Church Guidance for Same-Sex Issues
  Memorandum by Christian Legal Society
• Protecting Your Ministry from Sexual Orientation Gender Identity Lawsuits 
  Legal guide from Alliance Defending Freedom
• Rationales for Nonprofit Tax Exemption, Post-Obergefell
  Blog by Wagenmaker and Oberly, LLC