Transcription
Hi, I'm Jerry Sparks, president of Ag Financial Insurance. We have with us Rich Hammer, renowned attorney and author, and just a knowledgeable person. Boy, are we here at Risk Management Life, and do we have a subject today. Today we're looking at the Supreme Court's same-sex marriage ruling. And I can tell you that we've already had more questions come in on this than we've had at the beginning of anything that we've ever done, even conceal carry. So Rich is going to go over the court's decision and the impact that it has on church churches, ministries, and church leaders.
If you're watching this on live stream, you can type your question below on the page, and we'll actually try to get to your questions. But I think Rich is going to be able to answer most of the questions because he's already he's already fielded a lot of questions. So Rich, I'm going to turn over to you. Let's talk about the Supreme Court same-sex marriage ruling. Give us really what the decision was and maybe some of the dissents and they go into the impacts that it's going to have on our churches. Okay, that's a big project, but I'll do my best.
And just by the way, a background: of course, in a 5-4 decision by the Supreme Court on June 26, 2015, the court ruled that the right of same-sex couples to marry is part of the Fourteenth Amendment's guarantees of due process and equal protection of the laws, and therefore a state law that in any way limits this right is unconstitutional and void. Well, the effect of the court's decision has been to invalidate laws and constitutional provisions in 13 states defining marriage solely as a union between one man and one woman. In this presentation, I'll be summarizing the court's ruling and evaluating its impact on churches and ministers.
For many church leaders, the central issue is the impact of the court's ruling on religious practices, and in particular:
1. Will ministers be subject to civil liability for refusing to perform same-sex marriages in violation of their religious beliefs?
2. Can a church be penalized or sued for refusing to host a same-sex marriage on its premises?
3. Are the tax exemptions of religious schools and churches jeopardized by the court's ruling?
4. Should churches that are opposed theologically to same-sex marriage say so explicitly in their bylaws or other governing document?
Let me consider each of these four fundamental questions in turn. First, many ministers who are opposed on religious grounds to same-sex marriages are voicing concern over their potential liability for not performing such marriages. Well, is this fear well-founded or exaggerated? In my opinion, ministers need not be concerned about personal liability for refusing to perform same-sex marriages on the basis of their religious convictions, and I base this conclusion on three considerations.
First, several decisions by the United States Supreme Court strongly suggest that the First Amendment guarantee of religious freedom permits clergy to perform or not perform marriages consistently with their religious beliefs. Second, ministers routinely decline to perform some marriages based on religious considerations. To illustrate, some ministers refuse to perform some or all of the following marriages: marriages between more than two persons; marriages between a parent and child; marriages between siblings; marriages between first cousins, even though that's now recognized in about 21 states; marriages in which one or both spouses is underage; marriages in which one or both spouses was previously married and divorced; marriages in which one or both spouses is not a member of the pastor's faith; marriages in which the pastor believes one or more one or more of the spouses, while of legal age, are too spiritually immature to enter into so important a relationship.
Well, here's the key point: in the entire history of this country, no minister has ever been sued, much less found liable, for refusing to perform a marriage on these or similar grounds. And a minister's refusal to marry a same-sex couple in contravention of his or her religious beliefs should be viewed in the same light. If ministers can be found liable for refusing to perform same-sex marriages on religious grounds, then they're exposed to liability for refusing to perform any marriages as a result of their religious beliefs, including those that I just mentioned.
Well, the third reason why I believe ministers will not face legal liability for refusing to perform same-sex marriages is this: prior to the Supreme Court's recent decision validating same-sex marriages, such marriages were deemed lawful in 37 states by statute or court ruling. According to Chief Justice John Roberts' dissenting opinion in the same-sex marriage case, legislators in every state that has adopted same-sex marriage included accommodations for religious practice in their law, meaning that the right of ministers to marry or not marry couples on the basis of theological considerations was expressly recognized in these 37 states. Unfortunately, the Supreme Court did not include a similar provision in its same-sex marriage ruling, but the fact that all state legislatures did so is strong evidence of the constitutionally protected authority of clergy to choose who they will or will not marry based on their theological beliefs.
So in conclusion, ministers, in my opinion, should not be concerned about personal liability, either criminal or civil, for refusing to perform any marriage, including a same-sex marriage, in violation of their religious beliefs. Yes, same-sex couples now have a constitutional right to marry, but the same Constitution protects the free exercise of religion, and perhaps the most fundamental expression of this right is the unfettered freedom of clergy to perform the sacerdotal functions of their faith, including marriage, consistently with their religious convictions.
Well, let's look at another issue that many church leaders are raising in light of the Supreme Court's decision, and that is this: Can a church be penalized or sued for refusing to host a same-sex marriage on its premises? To illustrate, let's say that a same-sex couple asks a pastor if they can get married in the pastor's church, and the pastor says no. Does this subject the church to liability? Possibly, but the answer is complicated by two factors. First, the courts have yet to address the issue, and so all we can do is speculate. And second, any answer will depend on the texts and exemptions in a veritable patchwork quilt of hundreds of local, state, and federal laws forbidding discrimination by places of public accommodation. This makes it impossible to generalize. A church must determine:
1. If it is a place of public accommodation under applicable local, state, or federal law.
2. If so, is an exemption available for churches?
3. If a church exemption does exist, have all the conditions for the exemption been satisfied?
4. What constitutional protections are available to churches based on applicable judicial precedent?
Well, the answers to these questions will vary from jurisdiction to jurisdiction. It is likely that the courts will conclude that the greatest constitutional protection applies to churches that allow their premises to be used for weddings only by members. Any constitutional protection likely will be diminished or perhaps eliminated in the case of churches that rent their facilities to the general public as a revenue-raising activity. Church leaders should carefully consider the potential downside of entering the commercial marketplace in order to raise needed funds. Many examples could be cited of laws that treat churches that enter the commercial marketplace less favorably than churches that do not do so. For example, state laws that exempt church property from taxation typically deny the exemption to churches that rent their property for commercial gain, and a church's exemption from federal income taxation can be lost if the church engages in more than insubstantial unrelated income-generating activities.
I'm often asked about churches that allow community groups to use their facilities at no cost or maybe a nominal fee designed to cover expenses. How would they be treated? Unfortunately, again, there are no answers since no court has addressed this question, but the courts likely would regard such churches as closer to those that allow marriages for members only. The key consideration is that they have not intentionally entered the commercial marketplace to generate income.
Let's turn to a third issue that many church leaders are raising in light of the Supreme Court's decision, and that is this: Are the tax exemptions of religious schools, colleges, universities, and churches jeopardized by the court's ruling? The answer is maybe. In 1983, the Supreme Court ruled that the IRS had properly revoked the tax-exempt status of Bob Jones University on the basis of its racially discriminatory practices, even though the university based those practices on its interpretation of the Bible, as clearly articulated in its governing documents. The court concluded that the fundamental right to be free from racial discrimination superseded the university's religious beliefs, even though those beliefs were clearly referenced in its bylaws.
Well, the Supreme Court's ruling in the Bob Jones University case suggests that doctrinal provisions in the governing documents of religious schools that are viewed by the IRS or the courts as incompatible with the fundamental right of same-sex couples to marry may not be enough to fend off IRS challenges to tax-exempt status. I think it's interesting to note that during the oral arguments before the Supreme Court prior to the same-sex ruling, Justice Alito raised the Bob Jones University case by asking the Solicitor General, who was defending same-sex marriage, if the Bob Jones case imperiled the tax-exempt status of all religious colleges and universities that refuse to recognize same-sex marriage, and the Solicitor General responded, "It is going to be an issue."
Well, the same logic could apply to churches based on the Supreme Court's recognition of same-sex marriage as a fundamental right enshrined in the Constitution. At least one law school professor and several editorials have recently opined that churches that engage in any discriminatory practices involving sex, sexual identity, or sexual orientation should be denied tax-exempt status. This would include the Roman Catholic Church based on its refusal to ordain female priests and any church that discriminates against persons based on sexual orientation or sexual identity. Like Bob Jones University, they would be free to continue their discriminatory practices, but at the cost of losing the privilege of tax-exempt status. But it should be noted that the Roman Catholic Church's tax-exempt status has not been revoked by the IRS on the basis of sex discrimination in the 32 years since the Bob Jones University case, which suggests that the ruling may be limited to religious schools' racially discriminatory policies.
Some have asked me what would happen if the IRS revoked a church's tax-exempt status. What would be the consequences of that? Well, loss of a church's exempt status would have a variety of negative consequences, including some or all of the following: the church's net income would be subject to federal income taxation and probably to income taxation under many state laws; donors no longer could deduct charitable contributions that they make to the church; the church would be ineligible to establish or maintain a 403(b) tax-sheltered annuity; the church could lose its property tax exemption under state law; the church could lose its sales tax exemption under state law; the church could lose its exemption from unemployment tax under both state and federal law; the church's status under local zoning law might be affected; the church could lose its preferential mailing rates; and in some cases, ministers' housing allowance might be affected. The significant protections available to churches under the Church Audit Procedures Act would not apply. So clearly, any activity that jeopardizes a church's tax-exempt status is something that must be taken seriously.
Well, let's look at a fourth issue that many church leaders are raising in light of the Supreme Court's decision, and that is whether churches that are doctrinally opposed to same-sex marriage should be amending their bylaws or other governing document. Many who are opposed to same-sex marriage are imploring churches to amend their bylaws to insert a provision defining marriage as exclusively a union between one man and one woman. While such an amendment is not inappropriate, it may be unnecessary, redundant, or ineffective for the following three reasons:
1. Many church governing documents already contain provisions that provide a theological basis for the church's definition of marriage.
2. Bylaws are rules of internal governance and administration, and so a provision defining marriage would be out of place; a policy manual would be a better place for a marriage policy.
3. And most importantly, a bylaw amendment adding a marriage policy to a church's bylaws is no guarantee of protection since it might be ignored by an activist court. As we saw a moment ago, the Supreme Court ruled in 1983 that the IRS had properly revoked the tax-exempt status of Bob Jones University on the basis of its racially discriminatory practices, even though the university based those practices on biblical grounds that were clearly referenced in its governing documents. And this suggests that bylaw amendments are no guarantee of protection.
The bottom line is that including a statement in a church's bylaws defining marriage may be of some help should the church's tax exemptions be challenged or if the church is sued for violating a public accommodations law due to its refusal to host a same-sex marriage, but it's no guarantee of protection.
Well, some of you are wondering what, if anything, can be done to reverse a decision by the Supreme Court. Let me address that. A Supreme Court ruling may be reversed, but this has proven very difficult throughout our nation's history.
1. The court can itself reverse one of its decisions in a future case. I don't see this happening with the same-sex marriage ruling in the foreseeable future.
2. A Supreme Court ruling can be essentially reversed by an amendment to the United States Constitution, but the amendment process is arduous and has happened only 27 times in our nation's history. It requires a two-thirds vote of both houses of Congress followed by a vote of three-fourths of the state legislatures. The bottom line is that neither option has a good chance of success. Note that on the eve of the court's same-sex marriage ruling, 37 states recognized same-sex marriage, so it's almost inconceivable that three-fourths of those same state legislatures would endorse an amendment defining marriage solely as a union between one man and one woman.
Another option many are pushing is the First Amendment Defense Act that has been introduced in Congress. This bill, if enacted, would bar the federal government from taking any discriminatory action against a person or organization that is opposed to same-sex marriage on either moral or religious grounds. The bill defines discriminatory action to include revocation of tax exemptions, denial of charitable contributions, and it also includes withholding any federal financial assistance that otherwise would be available, and this probably would include financial assistance to religious colleges and universities.
One final point: some have suggested that the court's ruling paves the way for polygamous marriage. Chief Justice Roberts addressed this directly in his dissenting opinion. He noted that it was striking how much of the court's opinion and reasoning would apply to a claim for recognition of plural marriage. As is often the case with high-profile cases, there are numerous collateral issues that will need to be resolved by future litigation. This makes it important to stay up-to-date with legislative and judicial developments. I will be monitoring these developments and will be providing additional clarification when warranted. Jerry, back to you.
Okay, so actually we do have some questions. And actually, let's just start off with the Bible actually defines marriage, and 13 states define marriage as solely as a union between one man and one woman, so there is a difference in definition now. It looks like with these this court case versus the 13 states and the Bible, so is there a difference between give us the difference that the courts are looking at between like a civil marriage and religious marriage?
Yes, well, that's an important distinction. Many courts have commented on this, and many legislate legislatures have done so too, and in fact, virtually all state marriage laws say that marriages can be based on or performed in accordance with the religious beliefs of the minister or the church that may be involved. Some marriages are done before civil magistrates; that's fine. But marriages can also be solemnized by ministers, and when that happens, that can be consistently with the church's doctrine. So the fact that maybe same-sex marriage is permitted in your state doesn't mean that a pastor has to perform same-sex marriage. It just adds same-sex marriage to the to the category of marriages that are recognized by the state, and that includes marriages consistent with the religious beliefs of the particular church. So churches that are opposed to same-sex marriage are free to maintain their their religious marriages, and and those may or may not, what should I say, follow state law.
So, for example, in many cases, Jerry, couples will come to a minister who are not married and ask to have a religious marriage, ignoring state law which requires licenses, recording of a certificate of marriage, etc., etc. There are many formalities involved in a civil marriage, and in a true religious marriage, those are not followed. You just have a religious marriage before your church; you ignore the state requirements. That is usually done for tax purposes, you know, increasing social security benefits, etc. And I generally tell pastors, I I personally would have a problem performing a marriage where two people want a religious non-civil marriage solely for tax per tax purposes. I think that bastardizes the the whole concept of marriage. It and and so what another definition of religious marriage is where the the couple gets married in the church, but they comply with the formalities: the license, the certificate, the notification requirements, and these marriages are fully deemed to be legal for civil purposes. And and I think that's that's very important. It legitimizes children; it generally can result in some cases less taxes being paid. Now, that that's the ultimate consideration, but I think I've written a number of articles on this issue, and I've come up with a list of about 15 consequences, legal consequences, tax consequences of having a purely religious marriage, not complying with civil requirements, and many of these are very negative. And so I often tell ministers, be sure that you don't even consider entering into such a union or performing such a marriage without advising the couple as to these consequences.
A lot of religious schools ban sex before marriage, homosexuality, and that sort of stuff. Should they be concerned about losing their accreditation or tax-exempt status if they still do not allow this to happen with this ruling? Does this ruling have an effect on that at all?
Yes, it does. That was alluded to by a couple of the dissenting opinions, including Chief Justice Roberts. I think religious colleges and universities that are conservative in their theology and that are opposed to same-sex marriage, perhaps the sexual to homosexuality in general, they face a couple of impediments going forward, a couple of challenges, and those would include loss of tax-exempt status, and as we've seen, the Bob Jones University case could be cited as potential precedent for that. Number two is the loss of accreditation. These regional accrediting bodies are suggesting that these schools and their hundreds of religiously affiliated schools should perhaps not receive accreditation because of their discriminatory policies regarding same-sex marriage. And then number three would be the loss of federal financial assistance under various federal programs that really are the lifeblood for higher education. And for a for a church-affiliated school to lose its federal financial assistance would be fatal; to lose its accreditation would be fatal; to lose its tax-exempt status in most cases would be fatal. So these these are the three major obstacles that I think are unleashed by the Supreme Court's ruling that, by the way, is what this legislation, the First Amendment Defense Act that's been introduced in Congress, as I mentioned a moment ago, would seek to do; would would prevent tax-exempt status from being jeopardized or lost because of a a religious school's definition of marriage that would reject same-sex marriage, and it would it would prevent the federal government from denying federal financial assistance on the same ground. So these are existential threats to religious higher education, and there will be challenges, I'm sure, in a very near future that will work their way through the courts. I'll be reporting on all developments, of course, in various venues, including my Church Law and Tax Reports newsletter.
Another another question: a lot of churches and ministries may have some for-profit section, like a coffee shop, snack shop, that sort of stuff. So can they still discriminate in hiring and make it somebody that is a member or not hiring somebody because of of there because they are homosexual? Can they discriminate against that for that section because there's a lot of you know that there's a lot of people that are wondering? Yes, if that will be in jeopardy.
Well, that's an issue that was not addressed by the court's ruling directly; indirectly perhaps. The Supreme Court same-sex marriage ruling adds some support to those who complain that churches should not be free to discriminate in employment on the basis of sexual orientation. I will point out that Title VII of the Civil Rights Act of 1964, which prohibits employers with 15 or more employees from discriminating on several grounds in employment, does permit religious organizations to discriminate in hiring in employment on the basis of religion. And so if a church adopts a policy manual or employment manual that that prohibits certain people from being hired, maybe based on sexual orientation, maybe based on many other factors, that generally is permissible under federal law. There is there is a bill that's been in in Congress for the last several years called the Employment Non-Discrimination Act, which would expand basically Title VII to include to the list of prohibited discrimination sexual orientation. However, that contains a broad exemption for religious employers. So but you also have to consider state and even local legislation in this regard, and as I said before, it's a veritable patchwork quilt of laws you need to look at. And so I gave you that four-point checklist a few minutes ago. You need to be familiar with these laws at all levels: federal, state, local; whether there is an exemption for religious organizations; whether you qualify for the exemption; and what about First Amendment issues that may support your employment position? So that's a very important question. Again, I think we're going to start seeing litigation that will help clarify this, but for the time being, I think the law is clear that certainly under federal law there's no there's no penalty for a church that in its employment decisions wants to implement its its understanding of Scripture. I will say this: that there have been a number of these cases before the federal courts over the last 20 or 30 years, and the courts have also said this: while churches may be free to impose their biblical standards on their staff, their employees, they have to do so consistently. So there have been a number of cases, for example, where a church terminates a female employee for extramarital sexual relations, maybe pregnancy out of wedlock, and that person sues the church for sex discrimination. Churches are not exempt from sex discrimination, and the church says, "Hey, we're free to apply our biblical standards of conduct," and the courts have said, "Yes, you are, but not in a way that discriminates against a protected class such as females." And so the question in those cases is, has the church applied its doctrinal position consistently? And and the fact is, as long as you are consistent in the application and enforcement, the implementation of your biblical standards of morality and conduct for employees, you are you have significant protection. But if you start treating people differently, some more favorably than others based on status such as gender—males are treated more favorably than females—it's over; you're going to lose that case. So yes, churches are free to to apply their biblical standards to employees, but they must do so with strict neutrality and consistency.
There are many denominations that have adoption facilities and do foster children, and I know that there's Michigan law that says adoption agencies can refuse to allow same-sex adoptions if they have a religious objection to do so. Does this Supreme Court ruling affect all those ministries and all those denominations that will have those types of facilities when it comes to allowing since since gay couples now have a fundamental right to marry, do you think that will be extended to them having a fundamental right to adopt or to foster?
I do, and Chief Justice Roberts, in his dissenting opinion in the same-sex marriage case, makes this very point. And again, we have to await future litigation, but I'm sure that litigation will be launched in the very near future, and the all these social service agencies, church-related adoption, for example, I think the same-sex marriage ruling gives credibility and gives authority for the proposition that these agencies, even though they're church-related, should not be able to discriminate on the basis of sexual orientation. And in fact, the Catholic Church, I know, has closed some of these agencies rather than submit to to these rules.
Well, I know that this is probably not the last that we've heard from the Supreme Court, and, Rico, in regards to this subject. In the United States, it has changed its position in regards to how this is affected. I was reading an article that says, "For longtime supporters of gay marriage, the US for longtime supporters of gay marriage, they were in a minority. Now there's a suggestion those who oppose gay marriage are, for the first time in the country's history, are now in the minority." So I think that we're going to see more and more changes and objections coming before the Supreme Court with businesses, with discrimination laws, and and everything else. So stay tuned because I don't think we've seen the last of this. Rich, thank you for your insight and for really dwelling through.
This case, if you have questions in regards to this, feel free to email us. We will try to get answers to you. Rich really appreciates your time and your expertise. Thank you, Jerry. Thanks for it. Ok.