Interesting Article about Voting in the upcoming election...Food for thought:
Same Sex Marriage and the Church
By Ashley Seuell, Northwest Baptist Foundation Staff Attorney
Anyone who has been watching the news knows that marriage in the U.S. has changed. On Friday, June 26, 2015, the Supreme Court decided the case Obergefell v. Hodges. By a 5-4 split, the Court held that individual states cannot outlaw same sex marriage and must recognize same sex marriages from other states. Although same sex marriage was legalized in the majority of states before June 26, the Obergefell decision means that those states which still had same sex marriage bans or which were fighting to reinstate a ban now must permit and recognize same sex marriages.
Additionally, in recent years many states have redefined their employment and other discrimination laws to prohibit discrimination based on sexual orientation or gender identity. Famous court cases such as the legal battle surrounding an Oregon bakery which refused service to a same sex couple ordering a wedding cake have caused many Christians to wonder what the church can and should do.
Here are some frequently asked questions about same sex marriage and the church to help you and the members of your church respond to the current situation:
1.Should we include an article on marriage in our church bylaws?
Having a statement about marriage in your bylaws does not provide any special legal protection. Generally speaking, you want to be able to demonstrate the connection between your identity and core beliefs as a Southern Baptist church and your decisions and actions as a church, but you do not need to have your own statement on marriage in order to do that. At the same time, if the members of your church want to include a statement on marriage in your church’s bylaws or statement of faith, you may do so.
2.Do we have to allow same sex couples to use our building for weddings?
Under current law, the answer is no as long as your church does not cross the line to become a “place of public accommodation.” Many states (or individual counties or cities) have added sexual orientation and gender identity to the list of reasons why a place of public accommodation cannot discriminate, but these laws include religious exceptions to protect churches from being sued. Other states or the federal government also may expand their anti-discrimination laws in this way.
A “place of public accommodation” is a place open to the public, such as a store or restaurant. Such places cannot discriminate against customers based on things like race or gender or, under the expanded laws, sexual orientation or gender identity. Churches typically are treated differently, because churches are religious in nature and are based around membership. But if you rent use of your facilities to the general public without limitations or discretion, then a court could treat you like a place of public accommodation similar to a banquet hall or other facility that can be rented by anyone.
Some churches confront this concern by allowing only church members to use the building, but you need not rule out any use by a non-member. Churches can choose to open their doors to community groups and non-members if such uses fit with the church’s mission and beliefs. By exercising discretion over which uses you permit and which you do not and by linking use of your facilities to your religious purpose as a church, you can avoid acting like a place of public accommodation.
Regardless of whether you might permit a non-member to use the building or not, your church needs to have a written Facility Use Policy. This policy will connect any use of your property to your mission and beliefs as a church and will apply to everyone who wants to use your building.
Your Facility Use Policy should state that any intended use not in harmony with your beliefs and practices will not be permitted and that leaders in your church, such as the pastor, elders, or deacons, have discretion over which uses will be allowed. (You do not need to list every possible use which you will or will not permit.) Anyone who wants to use the building for a wedding, party, meeting, or other event must use it in accordance with your policy. The policy also may spell out certain things to which people renting or borrowing your facilities must agree, such as not bringing alcohol on the premises or not smoking inside the building.
Whenever people ask to use your facilities, give them the Facility Use Policy to read. Include a short form on which they will explain why they want to use your church and which they must sign to indicate agreement with the terms of your policy. If a desired use does not fit with your purpose and beliefs as a church, respectfully say no. This not only prevents your building being used for same sex weddings but also for weddings between a Christian and a non-Christian, parties that will involve alcohol, and any other use outside of your purpose and beliefs.
For a sample policy, see http://www.speakupmovement.org/church/content/userfiles/ Resources/church-facilities-use-policy.pdf. This policy may be broader or more detailed than your church requires, but it provides a helpful starting point for preparing or revising your own Facility Use Policy. There is no specific “magic language” that you must include in your policy as long as you make it clear that you exercise discretion over which uses of your building you will allow and that any use of your facilities is tied to your mission and purpose as a church.
3.Does our pastor have to perform a same sex wedding if he is asked to officiate?
No, and many legal scholars believe that First Amendment religious freedom protections should overrule any attempt to force a pastor to officiate a wedding with which he disagrees on biblical grounds. Right not, for example, laws prohibiting religious discrimination do not prevent a pastor from refusing to marry members of other religions or a professing Christian and a non-Christian.
It is wise, however, for each pastor to write his own wedding policy to give to anyone seeking his involvement in their wedding. This policy can discuss requirements for premarital counseling, whether the pastor will conduct weddings only for Christians or active church members, or any other limitations or expectations that affect which weddings the pastor will perform. The policy should state that the pastor will speak with the couple and then exercise discretion in deciding whether to officiate their wedding.
4.What about hiring or firing staff members? Can we be sued for discrimination for refusing to hire a homosexual pastor?
The Supreme Court has ruled that there is a “ministerial exception” to employment discrimination laws. The First Amendment gives churches the right to decide who they want to lead and carry out their religious work, and a court cannot force a church to have a minister the church does not want. Generally, as soon as a church or denomination being sued for discrimination can show that the employee in question was in a ministry role, the lawsuit should be dismissed. This “ministerial exception” applies to anyone in ministry work, not just pastors. In the case the Supreme Court decided, for example, the employee in question was a teacher at a Christian school.
To take full advantage of this ministerial exception, any job in your church which is a ministry position should be labeled as such. Using the word “ministry” or “pastor” in your job titles will not automatically prevent or win a lawsuit, but it is wise to label ministry jobs clearly. You also should have written job descriptions which demonstrate how the positions in your church are connected to your purpose and mission. Job descriptions should include your expectations for personal spiritual commitment and development (e.g. the person holding the position must be a member of your church, attend church regularly, have a personal prayer and devotional life, etc.) and provide some details about the ministry work required of the position (e.g. leading in prayer, teaching the Bible, organizing outreach events, and so on). That way, you are ready to demonstrate how a particular job in your church is tied to ministry should anyone challenge one of your employment decisions.
5.What should we do if we need to fire someone or remove someone from church membership because of sexual conduct or gender identity issues?
There are several things you can do to protect your church when you make employment and membership decisions. First, have written procedures in your bylaws for how hiring and firing decisions are made, how people obtain church membership, and how membership may be rescinded through church discipline. It should be clear to everyone, for instance, whether a church membership vote is required to remove someone from membership for unrepentant sin or whether the elders make that decision.
Second, take steps to limit the spread of information beyond those who need to be involved in an employment or membership decision. Keep the circle of people who know details of someone’s conduct as small as possible. Because churches are based around membership, members have a certain right to information that people outside of membership do not have. If your procedures call for a membership meeting to fire a staff member, for example, make sure only members are present. In any setting, admonish those who learn about a person’s character or conduct not to share details with others, post information on social media, or remove any relevant written materials from the building. Remind everyone that your goal is the ultimate spiritual health of both the individual and the church, and gossip undercuts that goal.
Third, stick to the facts and keep records of the facts. Conduct discipline proceedings in a way that limits speculation or repetition of rumors, and keep notes or minutes of those meetings. If a staff member resigns or a member leaves rather than face discipline, make note of that in your records.
Fourth, be honest when others ask for a reference for someone who has left your church. Stick to the facts when giving (or refusing to give) recommendations. If someone on your staff was terminated for a moral issue, you may say so. If someone left your church while discipline procedures were pending, you may inform the other church of that fact. While you must avoid repeating gossip or speculation, do not sugarcoat the truth or beat around the bush in an effort to be kind or avoid an uncomfortable conversation.
6.Can we lose our tax exempt status with the IRS if we oppose same sex marriage?
Right now the answer is no. Many legal scholars believe such a change to tax exemptions for churches is very unlikely, but others disagree. In the Obergefell decision, the Supreme Court stated that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” This language, however, does not mean that federal tax policy regarding churches cannot change. At this point we simply cannot say for sure whether churches could lose their tax exemptions at some point in the future, though it seems unlikely that tax policy will change quickly.
If you have any questions about specific situations or about how best to implement any of these suggestions in your church, please call the Northwest Baptist Foundation at 360-882-2250.