Protecting your church’s right to religious expression

By Frank Sommerville, JD, CPA

Since the beginning of the United States, marriage has always been subject to detailed rules.

Love is patientReligious organizations treated weddings as a religious ceremony, defining marriage rules by their theology. Since the state government cannot force every citizen to participate in a religious wedding ceremony presided over by a religious official, states created alternative wedding rules that were religiously neutral. The states allowed wedding ceremonies to the presided over by a civil official, usually a judge or justice of the peace.

Weddings also create marriages. The states created rules for making and dissolving marriages. These rules are also independent from any religiously based rules for making and dissolving marriages. Since marriage was a fundamental building block for society, federal, state and local governments created incentives for its citizens to marry and rules governing its dissolution.

The two wedding and marriage systems (religious and state) co-existed for the first 200 years the United States existed. The systems were compatible because the state recognized that the religious rules did not apply to them and the religious community agreed to comply with the state rules that did not conflict with their sincerely held religious beliefs. The systems began diverging in 1966 when California adopted the first no-fault divorce. The state would no longer follow the religious community rules for divorce. While some religious communities refused to recognize divorces based on the no-fault rules, most religious communities accepted divorces granted by the state.

The next major divergence of the two systems occurred June 2015. The United States Supreme Court determined that states could no longer define marriage as one man and one woman because it deprived certain individuals of the incentives created to reward married individuals. The old system violated the equal protection clause in the United States Constitution because it deprived individuals of the marriage incentives unless the marriage was a heterosexual marriage. The Supreme Court decision requires all government agencies to recognize same-sex marriages on the same basis as it has recognized heterosexual marriages. The result is that participants in same-sex marriages must receive the same treatment and benefits as a heterosexual marriage when it comes to the government.

The United States Supreme Court decision did not address the religious aspects of weddings and marriages. The Court left those issues to another day.

What it means for churches

Some churches have incorrectly interpreted the Supreme Court decision as requiring the church to treat same-sex weddings and marriages the same as it treats heterosexual weddings and marriages. While some churches have embraced the Supreme Court decision — and have altered their policies and procedures to authorize same-sex marriage — many churches have sought guidance on how to best protect themselves from the government imposing same-sex weddings and marriages upon them. The church might also have exposure in two areas: facilities use and employment.

Facilities use. Many churches strive to be center of the community’s activities. They take pride that they host a wide variety of groups in their facilities. In some communities, the church has the largest gathering space in the entire community.

In many instances, the local government or school district is a frequent user of church facilities. This philosophy might create issues for the church. If the church rents its facilities to a government entity, the church cannot have any say in how the government entity uses the church’s facilities. For example, if the church agreed to rent its facilities to the county, and the county uses the facilities for the justice of the peace office, the church cannot object when that justice of the peace performs a same-sex wedding in the leased facilities.

Some states and local governments have passed a law that prevents unlawful discrimination by facilities that are open to the public. Some of these laws include sexual orientation, sexual perception and gender identity as classes of individuals protected from discrimination. These statutes are used against Christian business owners who refuse their services to same-sex weddings.

While many of these public accommodation laws provide an exemption for churches, the issue is whether the extensive public use of the facilities has converted the church facilities into public use facilities covered by these statutes. In some states, the state has made the property tax exemption contingent upon the church being the exclusive user of the facilities. If the church allows nonmembers to use the church for a wedding, then the church could lose its property tax exemption.

Employment. Subsequent to the Supreme Court decision, the Equal Employment Opportunity Commission (“EEOC”) announced that it considered discrimination on the basis of sexual orientation, sexual perception, gender identity and same-sex marriage to be unlawful under Title VII (nondiscrimination in employment). The EEOC believes that gender discrimination includes sexual orientation, gender identity and sexual perception. It also believes that marital status discrimination includes same-sex marriages. It has begun to litigate cases addressing this issue.

Most churches are subject to Title VII, except churches may discriminate on the basis of religion. Further, ministerial employees are not subject to any of the federal employment laws. For non-ministerial employees, nothing in Title VII allows the church to discriminate on the basis of sexual orientation, sexual perception, gender identity or same-sex marriage in its employment practices. The church may not ask an applicant about his or her sexual orientation, gender identity or marital status.

Defensive steps for churches

• Establish the church’s position through a statement of faith that addresses sexual orientation, sexual perception and same-sex marriage.

• The statement of faith should become part of the church’s governing documents. The statement of faith should typically be included in the bylaws.

• Establish that the church consistently adheres to its statement of faith. This means that the church does not place in leadership individuals who have a homosexual orientation, transgender individuals, and parties to same-sex marriages.

• Establish that the church consistently refuses to allow its facilities to be used for any purposes that violate statement of faith.

• Establish that the church consistently refuses to allow its ministers to participate in or conduct wedding ceremonies that violate statement of faith.

• Adopt a written facilities use policy and require all nongovernmental users to agree with the statement of faith and will not use the facilities in any manner that violates the statement of faith. The policy should also limit the number and frequency of outside users.

• Require all job applicants to agree with the statement of faith before they can submit an application.

• Require all non-ministerial employees to a re-affirm their agreement with the statement of faith annually.

Helpful language for addressing the issue

© 2015 Liberty Institute

Statement on Marriage and Sexuality
(for Bylaws and Statement of Faith)

We believe that God has ordained marriage and defined it as the covenant relationship between a man and a woman, and therefore we will only recognize marriage is between one biological man and one biological woman. Genesis 1:27-28, Genesis 2:18-24, Matthew 19:4-9, Mark 10:5-9, Ephesians 5:31-33.

We believe that all sexual acts outside marriage are prohibited as sinful. Consequently, we condemn all sexual acts outside marriage as sinful — including but not limited to adultery, fornication, incest, zoophilia, pornography, prostitution, masturbation, voyeurism, pedophilia, exhibitionism, sodomy, polygamy, polyamory, sologamy, or same-sex sexual acts.  Exodus 20:14, Leviticus 18:7-23, Leviticus 20:10-21, Deuteronomy 5:18, Matthew 15:19, Matthew 5:27-28, Matthew 15:19, Romans 1:26-27, 1 Corinthians 6:9-13, 1 Thessalonians 4:3, Hebrews 13:4, Galatians 5:19, Ephesians 4:17-19, Colossians 3:5.

Marriage Policy Addition

Since God has ordained marriage, and we believe it is a covenant relationship with a man and a woman, we will only recognize marriages that are between one biological man and one biological woman. The ministers and staff of our church shall only participate in weddings and solemnize marriages between one man and one woman, and the facilities of property of the church shall only host weddings between one man and one woman.

Want to learn more?
Watch the highly informative “Protecting Your Church’s Right to Religious Expression” webinar — presented by GuideOne Insurance, Church Executive Magazine and Frank Sommerville, JDA, CPA.

Sample Member Covenant

By signing the church membership covenant, I am signifying that I agree with the Statement of Faith, including the Statement on Marriage and Sexuality.

Employment Application Addition

By submitting this application, I am representing to the Church that I agree with the church’s Statement of Faith and Statement on Marriage and Sexuality. I am also representing to the Church that my lifestyle on a 24 -hour and seven-day-week basis will be consistent with both those statements. If at any time my lifestyle fails to live up to those requirements, I understand that I can be disciplined, including termination of employment.

Addition to Code of Conduct for Employees

As an employee of the Church, I acknowledge that the church bases its teachings and guidelines for living and working on the Bible. The church expects each employee’s conduct will be in line with the moral spiritual and ethical teachings of the church as well as its Statement of Faith and Statement on Marriage and Sexuality on a 24-hour and 7-day basis. If the employee’s conduct is inconsistent with the standards, the church may discipline the employee in any way, up to and including termination of employment.

Frank Sommerville, JD, CPA, is a shareholder in the law firm of Weycer, Kaplan, Pulaski & Zuber, P.C. in Houston and Dallas. He is a nonprofit attorney and CPA who regularly assists churches in preventing litigation. 


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