On June 26, 2015, the United States Supreme Court issued its ruling in the case of Obergefell v. Hodges, which involved two questions regarding same gender marriage: (1) Does the Constitution require a state to license a marriage between two people of the same sex; and (2) Does the Constitution require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed in another state.
In Obergefell, the Court answered the first question in the affirmative, and recognized for the first time a constitutionally protected right of same gender individuals to marry. This ruling has the effect of overturning the laws of those states that define marriage as the union of one man and one woman. In response to the second question, the Court held that states must recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.
Questions have arisen about the impact of the Court's ruling on houses of worship and, specifically, what is required of churches that are opposed on theological grounds to same gender marriage?
It should first be noted that the Supreme Court's ruling applies to civil unions. It does not cross the line of religious freedom as protected by the First Amendment. Therefore, churches will still be able to follow the teachings and tenets of their faith with regard to same-sex marriage. Their clergy will not be required to marry same-sex couples if it does not fit within their religious faith and beliefs. As Justice Kennedy wrote in the Court's majority opinion:
"Finally, it must be emphasized 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 faith, and to their own deep aspirations to continue the family structure they have long revered."
The question of whether churches will be required to open up their facilities for same gender wedding ceremonies is more complicated. While the case before the Supreme Court did not directly address this issue, the implication moving forward is that if a church has a hall that it rents to the general public, it will not be able to deny rental to a gay couple who want to have a wedding reception, anniversary party, etc. The church will either have to decide that they will rent to everyone, or change their rules to only rent to church members or other members of the public who practice that same faith. A church does not necessarily have to close its facilities to non-member events or weddings, so long as it has policies and procedures in place to evaluate proposed uses and make sure they correspond with the church's beliefs. This can be accomplished through the proper statements of faith in its facility usage policies and other governing documents. However, the church must uphold these statements in all situations without exception or exclusion.
In some states, there are exemptions that do not depend on these statements to afford protection to ministers. For example, New York's law contains a religious exemption that a religious entity "shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage," N.Y. Dom. Rel. Law § 10-b (McKinney). This exemption allows a church in New York to decline to provide certain services without fear of civil action. However, exemptions vary from state to state, and some states do not have any religious exemptions. Thus, it is important for churches to seek guidance from their legal counsel to make sure they know where they stand under the law of their state today, and that they are prepared for any changes that may come tomorrow.
The Obergefell case recognized a fundamental right of same gender couples to marry under the 14th Amendment of the Constitution. How this new fundamental right interacts with the First Amendment's guarantee of the free exercise of religion will be of interest to houses of worship as those provisions are interpreted by the courts moving forward.
For further reading on this topic, please see the Nov. 12, 2014 Safety Watch article, "Same Sex Marriage: Addressing the Commonly Asked Questions," authored by the Lewis Roca Rothgerber law firm.
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