From a purely legal standpoint, maybe the really important question is whether the Supreme Court has now ruled that the 14th Amendment to the U.S. Constitution has priority over the 1st Amendment? After all, the 5-4 decision in the recent Supreme Court case of Obergefell v. Hodges 1, which now requires all states to license gay marriage and to honor same sex marriages from other states, was based on the premise that the equal protection clause of the 14th Amendment prohibits a state from discriminating in the institution of its marriage laws. On the basis of such a holding (one that apparently ignores any premise that marriage is historically a religious institution, not a state-contrived one), can it be possible that the SCOTUS decision will be interpreted in such a manner as to require churches and religious
institutions to provide equal access to and use of their facilities as venues for same sex marriages, demand equal access to a church’s pastors and staff to conduct such marriages, require churches to institute anti-discriminatory policies in the church’s hiring practices, and establish legal prohibitions against so-called ‘divisive speech’ from the pulpit? Understanding and responding proactively to the answer to these questions is important to the proper functioning and protection of your church or ministry.
Obergefell v. Hodges seems to say that the 1 st Amendment right of free exercise of religion still permits religious organizations to limit the use of their facilities to activities that are in agreement with their deeply held religious practices, and to maintain hiring practices that require employees to adhere to the church's religious doctrine. The Supreme Court opinion identified 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. The 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.” 2 If this language sounds like the Supreme Court is providing an accommodation for religious organizations, well, it is. But why does the Court need to include such “accommodation” language when the First Amendment already guarantees the freedom and right of all citizens to “exercise” one’s sincerely held religious beliefs?
So, how does a church or religious ministry make sure it’s ‘sincerely held religious beliefs’ are controlling when it comes to the use of its facilities, weddings, employment policies, and the right to preach its deeply held spiritual beliefs? Legally speaking, a church or religious organization needs to make sure that it’s controlling documents (including, but not limited to: its articles of incorporation, bylaws, constitution, statement of faith, facilities use policies, employment policies and other operational documents) all reflect the source of the church or ministry’s sincerely held beliefs and do so in a consistent manner.
All ministry activities and uses of a church or ministry’s facilities should be determined and guided on the basis of how such activity or use reflects the sincerely held beliefs and furthers the religious purpose and mission of the church or ministry. Any use of the church or ministry’s facilities that does not agree with the sincerely held religious beliefs nor promotes or furthers its religious purpose should not be permitted or, at the very least, allowed only on a very limited and strictly controlled basis.
Churches and religious ministries may continue to make employment decisions on the basis of the ministry’s sincerely held religious beliefs and practices, but such requirements should be clearly identified in every aspect of the hiring (and firing) process, including advertising for an open position and the job description. A requirement for adherence to the ministry’s religious doctrine and religious principals as a condition of continued employment is appropriate, so long as it is clearly communicated and is equally applied.
If your church or ministry is concerned about whether it is clearly communicating and demonstrating its sincerely held beliefs in its governing and controlling documents, and whether it is properly protecting the ministry in its use of its facilities and its hiring and firing practices, we would like the opportunity to meet with you to review your current documents and policies and provide you with guidance that we sincerely believe can protect your ministry from persons and organizations with a different agenda.
1 Obergefell v. Hodges,
2 Id. Justice Kennedy’s Religious Organization “Carve Out”