Legal Protections for the Church in Light of SOGI Rights and Laws

Gavel

The following is a paper submitted to Dr. Robert Priest and Dr. Stephen Roy in partial fulfillment of the requirements for the course ME 8000 Contemporary Sexualities: Theological and Missiological Perspectives at Trinity Evangelical Divinity School, December 2015.

** Note: This is not an opinion piece. And, therefore, I do not express my opinions about same-sex sexuality, gender dysphoria, and contemporary laws related to them in this paper. Thus, you will note, I refer to differing views on the subjects without expressing my approval or disapproval. Please do not interpret my silence in this regards as either an endorsement or condemnation of any of the herein mentioned views.


Introduction

Recent U.S. legislation and court decisions regarding sexual-orientation and gender identity (from now on SOGI) rights create a new frontier of potential legal concerns for American churches that affirm a traditional, historic view of marriage, sexuality, and gender. Although only time can tell what implications such laws will have for religious liberties,[1] as Justice Roberts said in his dissenting opinion of the Obergefell ruling, “Today’s [i.e., the Obergefell] decision . . . creates serious questions about religious liberty.”[2] From potential loss of tax-exempt status[3] to non-discrimination suits,[4] churches have reason to demonstrate concern. For example, think of the following scenarios that are now imaginable:

  • A discrimination lawsuit is filed against a church that refuses to accept a practicing gay man into its membership.
  • A church is sued for discrimination when it denies a gay couple’s request to host their wedding.
  • A church disciplines a member for unrepentant lesbian activity. She sues the church for malpractice and discrimination.
  • A church discovers that an employee is undergoing sex-realignment surgery. Is the church legally able to discharge them on these grounds?
  • A church’s pastor is sued for malpractice by an ex-counselee due to claimed damages caused by counsel to “repent of your homosexuality.”
  • A church with a housing ministry is sued for discrimination when it restricts applicants to heterosexual couples.

Despite great cause for concern, churches should also remember that they have great protections under the First Amendment of the U.S. Constitution. Furthermore, there are proactive measures churches can take to utilize these protections. This paper seeks to synthesize and summarize the general consensus among legal experts about what actions U.S. churches that affirm a tradition Christian view of marriage, sexuality, and gender can take in order to minimize these legal risks surrounding SOGI rights and laws. The paper will begin by identifying variegating factors that churches need to consider. Afterwards, the bulk of the paper will propose various agreed upon practical procedures by which a church can minimize its legal risks.

Variegating Factors[5]

In one sense, the precautionary measures a church can take in order to achieve legal protections is incredibly straightforward. Several varying models that a church must weigh and from which it must choose do not exist. Rather, the literature on this subject is incredibly repetitive due to general agreement about what actions churches should take.

On the other hand, these simple and straightforward steps become incredibly complex in light of variegating factors related to the unique situation of particular churches. First, this paper is directed towards churches that hold to (a) a historic Christian view of marriage and gender and (b) a traditional Christian sexual ethic such that they deem (a) non-heterosexual-marital sexual activity as sinful and (b) gender dysphoria as a result of the fall and not something to be embraced. For those churches diverting from these standards in some way,[6] extra legal and policy considerations (beyond what is addressed here) will likely be needed. Second, if churches are denominational, they must consider how their particular denomination’s (a) polity and (b) position on SOGI affect their actions.[7] Particular proposals in this paper are only relevant to a church to the degree that church has autonomy from hierarchical ecclesial authorities to implement them. Even if a church’s denomination has adopted statements or policies on these matters, that church should still make such beliefs and policies clear in its own documents (e.g., by making reference to or restating denominational statements). Although such denominational statements may provide some legal protection, unless a particular church makes their adoption of such beliefs and policies explicit in its own documentation, courts may question whether these denominational standards apply to that church.[8] Third, the variations among different state and municipal laws will need to be considered to ensure that a church pursues legal protections that actually make sense in its own legal context. And, finally, attention should be given to the unique nature of each church and the unique legal considerations that accompany its uniqueness.[9]

In light of these complicating factors, it is recommended that individual churches seek professional legal counsel for information and advise regarding these particulars.

Proposals

The First Amendment of the U.S. Constitution grants significant legal protections to religious organizations, such as churches. But such religious freedoms only cover institutions and actions recognized as actually religious in nature. Thus, the basic strategy to minimize legal risks, and the essential feature of most of the following proposals, is to make explicit the religious motivations and shaping of a church’s policies and practices.[10]

Incorporation. If a church has not done so already, it should incorporate. Incorporating makes a church an official legal entity and gives it ability to possess private property and independent legal rights, both of which grant it better legal protections.[11]

Religious purpose statement. For the sake of making the religious nature of the church explicit (see above), a church’s articles of incorporation should include an overtly religious purpose or mission statement.[12]

Statement of faith. A church’s articles of incorporation should include a statement of faith. And that statement of faith should make clear the church’s convictions on the following matters: (1) marriage (using language that makes clear the church’s convictions on same-sex marriage), (2) sexuality (using language that makes clear the church’s view on non-heterosexual-marital sexuality), and (3) gender (using language that makes clear the church’s view on matters related to gender identity).[13] A church’s stance on such matters will not be taken for granted in the case of a legal challenge. Such statements, therefore, guard the church from legal challenges that could potentially charge the church with improper motives if their sincere religious convictions are not made known.[14]

In addition, a church does well to adopt a statement that specifies where final decision-making authority resides (e.g., congregational vote, board of elders, etc.) on particular matters. Such a statement serves as a “catch-all,” guarding the church from charges related to any unforeseeable disputed matters.[15]

Membership policies. In order to minimize legal risks related to (1) whom the church chooses to receive into its membership (e.g., a discrimination lawsuit) and (2) how it governs that membership (e.g., [a] disciplining members or [b] resolving disputes among members [e.g., a defamation lawsuit]), churches do well to adopt certain membership policies.

First, if a church does not yet do so, it should consider enacting the practice of church membership. A church has great legal freedom to govern its members (e.g., exercise church discipline, settle disputes, etc.) according to its own judgment.[16] However, a church’s freedom to govern is limited to governing those who are actually part of the church (i.e., members).[17]

Second, a church should establish formal procedures for how one becomes a member. This should involve agreement, expressed in written consent (to be securely retained), with a membership covenant (or a similar document) that includes the following terms:

  • Agreement with a statement of faith (one including convictions on marriage, sexuality, and gender).
  • Commitment to a standards of conduct.
  • Acceptance of a dispute resolution policy.
  • Acceptance of a church discipline policy.
  • Acceptance of a membership disassociation policy.[18]

Of course, to require agreement with such policies and statements assumes that they already exist. Therefore, third, if necessary, churches should adopt the above statements. These policies and statements (and requiring membership consent to them) legally protect the church as it (1) discriminates by religious criteria those whom it accepts into membership[19] and (2) exercises practices like church discipline and dispute resolution.[20]

Having established formal policies for membership disassociation is particularly important because courts have ruled that it is a First Amendment right to terminate one’s membership,[21] and have allowed a lawsuit to proceed when a church attempted to discipline someone after they withdrew their membership.[22] At the same time, courts have recognized that this right to terminate one’s membership can be waived.[23] Therefore, if churches seek to exercise church discipline, they should adopt a policy that details the precise terms in which membership disassociation is permitted.[24]

Employment policies. Under federal law, religious organizations are permitted to consider religious standards in the hiring and firing of employees.[25] Should a dispute arise about the religious criteria (e.g., refraining from homosexual activity) required for a particular position, churches can best avail themselves of these federal protections by having established criteria for its employees (and formal volunteer positions) that clearly indicate the religious nature of their roles. Such criteria demonstrates the religious grounds for limiting these employment opportunities where they may be otherwise disputable.

It is suggested that employment policies include the following:[26] (1) in applications, job descriptions, contracts, employee handbooks, employee reviews, and termination documents (a) present the religious significance of the position, i.e., how the position furthers the church’s religious mission and (b) identify the religious aspects of the position, detailing the religious requirements, responsibilities, duties, skills, characteristics, and standards of conduct that are necessary for the positions. (2) As a condition of employment, employees should sign statements (to be securely retained) agreeing to (a) the church’s statement of faith, (b) a standards of conduct,[27] (c) disciplinary protocols, and (d) means of mediation and arbitration for disputes.[28] According to Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, religious organizations are exempt from employment non-discrimination laws with respect to employees or volunteers considered to be ministers, i.e., those tasked with carrying out the organizations religious rituals and/or teaching.[29] Therefore, (3) where appropriate[30] churches should make use of this exemption by expressly using “minister” language in position descriptions.

Facility use policies. In basic terms, a “public accommodation” is an entity, facility, or property, whether public or private, that is made open to the public.[31] And according to law, one is not permitted to discriminate access to such “public accommodations.”[32] To date, no church facility has been legally considered a “public accommodation.” As private property, church facility access may be restricted.[33] And as religious institutions, churches can find legal protection under the First Amendment for the restricted use of their facilities. “[C]hurches have the right to ensure that any use of their facilities is consistent with their religious beliefs.”[34] But to the degree that churches open up their facilities to outsiders without regard to its beliefs, its mission, or church policies, the risk that one may claim such facilities constitute a “public accommodation” (and therefore should be made accessible to same-sex couples wishing to be married, for example) is increased.[35] Therefore, any church that owns facilities that it permits to be used outside of its normal operations does well to adopt facility policies.

It may be unnecessary for churches to disallow all outside groups from using its facilities in order to ensure legal protection. Less drastic, less restricting methods may exist for establishing legal protections,[36] such as adopting clear policy statements. At the same time, Christian Legal Society expresses a note of uncertainty: It is unclear at this point whether granting access to certain outside groups (e.g., Alcoholics Anonymous, Boy Scouts, etc.) could result in a church’s facilities being deemed “public accommodations.”[37]

In composing facility policies, churches should do the following things: (1) Policy statements will need to be crafted according to the unique contours of a particular church, what its facilities are, and how it makes those facilities available to the larger public. There is no “one size fits all” answer here.[38] Legal counsel, therefore, is recommended. (2) In forming facility policies, the goal is to present the religious nature of the facilities and restrict their use to those that are consistent with the church’s beliefs, practices, and mission (making sure to use language that addresses convictions regarding marriage, sexuality, and gender).[39] (3) Be specific. A general statement requiring that all facilities be used in a manner consistent with the convictions of the church is helpful. But the more specific one can be about particular facilities and the particular uses of those facilities that are allowed or prohibited, the more protected one is.[40] (4) Use written and signed agreements that include the above material (points 2 and 3) with all facility users. This agreement should also include mention of dispute resolution should any arise.[41]

Finally, churches should note that renting one’s property increases the risk of (1) that facility being considered a “public accommodation” and (2) the church losing its tax-exempt status.[42] Renting out facilities, and therefore making profit, may make a church seem less religious and more commercial in nature, thereby forfeiting its religious protections.[43] In light of this, it is recommended that if churches do rent out facilities, they do so at rates below standard market rates.[44] Christian Legal Society suggests using the following language (which is in keeping with a church’s state and federal tax-exemption status) in policy statements or agreement forms:

The Church may request donations or charge for cost-sharing contributions (“fees”) in order to defray the estimated cost of facility use. No such fees shall be charged with any impermissible view to profit, and any and all fees are subject to waiver or reduction based on the prospective user’s financial need.[45]

Wedding policies. Churches would do well to adopt a policy detailing whom its ordained ministers may marry. For example, if a church’s activities include marrying individuals who do not necessarily share its religious convictions, such as non-members, it should adopt a policy presenting its religious beliefs for (a) doing so and (b) restricting such marriages to certain couples while excluding others (e.g., homosexual couples). If a church fails to do so, it opens itself up to discrimination charges based on “public accommodation” claims.[46] It would also be wise to (a) require a signed agreement form detailing these policies, (b) require couples to undergo marriage counseling provided by the church (this would reinforce the church’s religious motivations in performing the marriage), and (c) avoid charging money for weddings except for necessary facility expenses (this avoids claims of commercial activity leading to “public accommodation” claims).[47]

In light of recent legal proceedings regarding same-sex marriage, some have questioned whether ordained ministers should be involved in performing civil marriages at all. Both religious convictions[48] and legal protections are potential motivations at play here. Currently, no minister can be legally forced to perform a same-sex marriage. “[A] wedding is a religious ceremony with legal implications, but it is not itself a legal procedure.” And as religious officials (not state officials), ministers cannot be compelled to perform same-sex marriages by virtues of the legal implications of their religious function.[49] Nonetheless, to take such an approach, i.e., disbarring oneself from performing any civil marriage as a matter of policy, is certainly a far less risky approach to the progressing legal situation.

Separately incorporating. Outreach and community-focused programs such as schools, adoption agencies, housing programs, community centers, etc. are particularly susceptible to “public accommodation” claims. Churches with such programs might consider separately incorporating them. The primary benefit for doing so is risk management—separating major liabilities (i.e., these sorts of ministries) from major assets (i.e., the church) silos potential damages if a legal charge was levied.[50] Furthermore, if a community-oriented ministry of this nature is government-funded, it is liable to government auditing and other reporting requirements. Separately incorporating it protects a church from such impositions.[51] On the other hand, separately incorporating a ministry may remove it from religious liberty protections that it might otherwise receive through its connection to a church.[52]

Counseling policies. Legal risks are present when counseling anyone, let alone when counseling SOGI cases. Therefore, it is wise for church counseling ministries to adopt formal counseling policies and accompanying practices.

Church counseling ministries should require counselees to sign a counseling agreement form in which at least the following things are acknowledged: (1) Absolute confidentiality is not promised. If church convictions would require that information obtained through counseling could potentially be used in church discipline (e.g., in a case where a counselee abandons counseling and begins living unrepentantly in a sin which was disclosed in the privacy of counseling), this potential breach of confidentially should be disclosed at the outset.[53] (2) If the counseling is not professional, clinical, or licensed by the state, a statement clarifying so should be included. In determining whether things like malpractice have occurred in counseling, courts examine the nature of the counseling. Unprofessional, religious counseling is protected under the First Amendment, whereas professional, clinical counseling is subject to judiciary scrutiny.[54] (3) To provide even greater legal protections, agreement forms could include a statement waiving rights to sue the counselor or church for malpractice, negligence, defamation, libel, slander, invasion of privacy, failure to refer a member in counseling to a health care professional if necessary, or breach of fiduciary duty or confidential relationship.[55]

In addition the following practices will help minimize the legal risks in one’s counseling ministry: (1) Take reasonable care in hiring (or appointing) official counselors (e.g., perform background checks, check for potential criminal records, perform a hiring process involving detailed applications, interviews, reference checks, and education verification). Doing so will reduce the likelihood that a church will be found liable for malpractice on the part of a counselor.[56] With this in mind, churches may find it wise to require certification through Christian counseling ministries.[57] (2) Churches could require its counselors to sign a policy agreeing to practices that could include at least the following: (a) Where confidentiality is promised, ensure that it is kept.[58] (b) Keep detailed records of all counseling appointments and sessions. Such notes could prove useful in the case of an allegation.[59] (c) Refer counselees to professional counseling or professional medical or psychiatric care when required.[60] (3) When counselor malpractice, negligence, or incompetence is known, a church must take action. If not, the church could be found culpable.[61] And (4) a church may consider purchasing liability insurance that covers religious counseling.[62]

Finally, if a church considers practicing “reparative therapy” (or counseling that could be considered reparative), it should stay up to date on potential laws that could prohibit such forms of counseling and seek legal advice accordingly.[63]

Consistent implementation. Churches must diligently ensure that all of their formal policies, beliefs, and practices are implemented consistently. Failure to do so may jeopardize their legal protections. The United States grants significant religious liberties to institutions when its religious beliefs are sincerely held. But inconsistent implementation of policies exposes a church to legal arguments that its policies and beliefs do not really matter for its decisions and practices.[64] For example, state courts have entertained cases that involved membership decisions where a church had not complied with its own policies and bylaws.[65] To ensure consistent implementation, churches do well to require staff and volunteers to undergo training on proper policy implementation.[66]

Staying Informed. The new frontier of SOGI rights and laws is a developing one. Consequently, churches should make deliberate efforts to stay informed about recent legislations, the latest legal decisions, and their potential implications for churches.

Political engagement. Churches should consider advocating for legal protections where appropriate.[67] Examples of such legislation would include the First Amendment Defense Act (FADA) introduced by Senator Mike Lee of Utah and state Religious Freedom Restoration Acts (RFRAs).[68]

Plausibility advocacy. Apart from a society’s sense that the view is reasonable or at least has some degree plausibility, traditional Christian stances on SOGI matters could likely be considered arbitrary, motivated by animas, and deemed unworthy of religious exemptions.[69] If churches are to continue to receive religious liberty protection in years to come regarding SOGI matters, they will need to advocate and seek to demonstrate the plausibility of their views before society.[70]


APPENDIX A – Summary Checklist for Pursuing Legal

  • Note potential variegating factors (pursue professional legal counsel accordingly):
    • Your church’s unique stance and practice on SOGI matters.
    • Denominational factors.
    • Unique state and municipal laws.
    • Your church’s unique nature and ministries.
  • Incorporate your church.
  • Include a religious purpose statement in your articles of incorporation.
  • Adopt a statement of Faith.
    • Include convictions on marriage, sexuality, and gender (state in positive, not negative, terms).
    • Include statement of final decision-making authority.
    • Where other church documents (e.g., membership policies, employee policies, facility policies, etc.) reference church convictions on SOGI matters, make sure they are consistent with or refer directly to this statement.
  • Adopt membership policies.
    • Enact the practice of membership.
    • Require signed agreement with a membership covenant or the like (to be securely retained) that includes the following terms:
      • Agreement with a statement of faith (one including convictions on marriage, sexuality, and gender).
      • Commitment to a standards of conduct.
      • Acceptance of a dispute resolution policy.
      • Acceptance of a church discipline policy.
      • Acceptance of a membership disassociation policy.
    • Adopt standards of conduct, a dispute resolution policy, a church discipline policy, and/or a membership disassociation policy if necessary.
  • Adopt employment policies.
    • Present the following in employee documentation (e.g., applications, job descriptions, contracts, employee handbooks, employee reviews, and termination documents):
      • The religious significance of the position, i.e., how the position furthers the church’s religious mission.
      • The religious aspects of the position, detailing the religious requirements, responsibilities, duties, skills, characteristics, and standards of conduct necessary for positions.
    • Require employees to sign statements (to be securely retained) agreeing to the following as conditions of employment:
      • The church’s statement of faith.
      • A standards of conduct.
      • Disciplinary protocols.
      • Means of mediation and arbitration for disputes.
    • Make appropriate use of the “ministerial exception.”
  • Adopt facility use policies.
    • Consider whether you will make your facilities available to outside groups.
    • Consider the unique aspects of your church, its facilities, and how it makes those facilities available to the public (seek legal counsel).
    • Present the religious nature of the facilities and restrict their use to those uses consistent with the church’s convictions (be sure to use language that addresses convictions on marriage, sexuality, and gender).
    • Be specific about particular facilities and particular uses of those facilities that are allowed or restricted.
    • Use written and signed agreements with all facility users.
    • Include a dispute resolution policy in agreement forms.
    • Beware of renting out facilities. If you do, do so at rates lower than the standard market rates.
  • Adopt wedding policies.
    • Present the religious motivations for the following:
      • Performing the permitted marriages.
      • Restricting the permitted marriages to certain couples.
    • Require signed agreement (to be securely retained) to wedding policy statement.
    • Considering requiring religious marriage counseling.
    • Avoid charging fees that could constitute as making profit.
  • Consider separately incorporating certain ministries.
  • Adopt counseling policies.
    • Require counselees to sign an agreement including the following:
      • A notice that absolute confidentiality is not promised.
      • (If applicable) A notice that the counseling offered is not professional or clinical.
      • A waiver of certain rights.
    • Require all counselors to sign a policy agreeing to the following:
      • Guard confidentiality beyond noted exceptions.
      • Keep detailed records of all counseling appointments and sessions.
      • Refer counselees to professional counseling or professional medical or psychiatric care when required.
    • Adopt the following policies:
      • Take measures that qualify as responsible care in hiring and appointing counselors (e.g., perform background checks, check for potential criminal records, perform a hiring process involving detailed applications, interviews, reference checks, education verification, and consider requiring certification).
      • Take action when counselor malpractice, negligence, or incompetence is known.
    • (If applicable) Stay up to date on laws concerning reparative therapy.
    • Consider liability insurance.
  • Consistently implement your policies (provide staff and volunteer training).
  • Stay informed on legal developments.
  • Advocate for legal protections in the political realm where appropriate.
  • Seek to promote the plausibility of your convictions.

APPENDIX B: Summary of Resources for Composing Statements of Faith and Policy Statements

Sample statements of faith on marriage, sexuality, and gender:

Other resources that may serve helpful in composing a statement on marriage, sexuality, and gender:

Sample membership agreement statements:

  • Protecting Your Ministry, 16, 33.
  • “Church Guidance,” 14-15.

Sample facility policies:

  • Protecting Your Ministry, 28.
  • “Church Guidance,” 17-18.

Sample marriage policies:

  • Protecting Your Ministry, 17.
  • “Church Guidance,” 16.

Denominational churches should also contact their denominations in order to obtain any materials (e.g., sample statements) that have been prepared by denominational representatives for the sake of adaption in their denominational churches.


APPENDIX C: Using Hospitable Language in Statements and Policies

In an unpublished personal document (used with permission), Tyler Chernesky provides the following two recommendations in order to avoid using language that is unnecessarily offensive or unhelpful but, rather, to use language that is more hospitable regarding SOGI matters. I provide these recommendations here, without commenting on them and without necessarily endorsing them, for any benefit they may provide the reader. The goal of these two example suggestions is to stimulate conscientiousness in the wording of policy statements.

  • Avoid unhelpful “we/us” “they/them” language – “The use of ‘us/them’ language throughout” a policy “damages … unity by suggesting that LGBT students and/or staff are not full or total members of” the particular community.
  • Replace “struggle with same-sex attraction” with “experience same-sex attractions.” “The phrase ‘struggle with same-sex attraction’ can remind those who have had negative experiences with Christian communities because of their sexual attractions of intense periods of self-loathing, internalized hatred, and shame because language of struggle has frequently been employed by ministries and in literature promising orientation change. Though language of struggle appears in some Christian LGBT autobiographies, it is kinder and more respectful to speak of others’ ‘experience of same sex attractions.’”[71]

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“A Church Statement on Human Sexuality: Homosexuality and Same-Sex ‘Marriage’ — A Resource of EFCA Churches.” Spiritual Heritage Committee, May 2013. http://go.efca.org/sites/default/files/resources/docs/2013/05/a_church_statement_on_human_sexuality_3.pdf.

Bernstein, et al. v. Ocean Grove Camp Meeting Association OAL DKT. NO. CRT 6145-09.

Bob Jones University v. United States, 461 U.S. 574 (1983).

“CCCU Statement on the Obergefell v. Hodges Decision’s Impact on Religious Institutions.” Council for Christian Colleges and Universities, June 26, 2015. http://www.cccu.org/news/articles/2015/StatementonObergefellvHodges.

“Church Guidance for Same-Sex Issues.” Christian Legal Society, 2015. http://clsnet.org/document.doc?id=852.

“Church Guidance for Same-Sex Issues: Frequently Asked Questions.” Christian Legal Society, 2015. http://clsnet.org/document.doc?id=863.

Conlon v. InterVarsity Christian Fellowship. 777. 6th Cir. 2015.

Elane Photography v. Wilcock.

“Equip: Same-Sex Marriage and Homosexuality.” The Ethics and Religious Liberty Commission of the Southern Baptist Convention, n.d. http://erlc.com/equip/same-sex-marriage.

First Baptist Church of Glen Este v. State of Ohio. 591. S.D. Ohio 1983.

“God Defined Marriage.” National Association of Evangelicals, June 26, 2015. http://nae.net/wp-content/uploads/2015/06/God-Defined-Marriage.pdf.

Gunn v. Mariners Church, Inc. 167. Cal. App. 4th 206 (2008).

Hatcher v. S. Carolina Dist. Council of the Assemblies of God, Inc. 226. S.C. 1976.

“Here We Stand: And Evangelical Declaration of Marriage.” Ethics and Religious Liberty Commission of the Southern Baptist Convention, June 2015. https://erlc.com/erlc/herewestand.

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. 132. U.S. 2012.

“How We’ll Win.” Freedom for All Americans, n.d. http://www.freedomforallamericans.org/how-well-win/.

Ingersoll v. Arlene’s Flowers.

Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am. 344. U.S. 1952.

Knapp v. City of Coeur d’Alene.

Konkel v. Metropolitan Baptist Church, Inc. 572. Ariz. 1977.

LeBlanc v. Davis. 432. La. 1983.

“Manhattan Declaration: A Call of Christian Conscience.” Manhattan Declaration Inc., November 20, 2009. http://manhattandeclaration.org/.

“Manual for Mandated Reporters (Revised Edition).” Illinois Department of Family Services (Children’s Justice Task Force), May 2015. https://www.illinois.gov/dcfs/safekids/reporting/Documents/cfs_1050-21_mandated_reporter_manual.pdf.

McClure v. Salvation Army. 460. 5th Cir. 1972.

Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. 576 U.S. 2015.

Owen v. Board of Directors of Rosicrucian Fellowship. 342. Cal. App. 1959.

Paul v. Watchtower Bible & Tract Society of New York, Inc. 819. 9th Cir. 1987.

Protecting Your Ministry from Sexual Orientation Gender Identity Lawsuits: A Legal Guide for Churches, Christian Schools, and Christian Ministries. Alliance Defending Freedom; The Ethics and Religious Liberty Commission of the Southern Baptist Convention, 2015. https://adflegal.blob.core.windows.net/web-content-dev/documents/protecting-your-ministry-manual-english.pdf?sfvrsn=6.

“Religious Liberty Guidance: Non-Discrimination and Same-Sex Issues.” Christian Legal Society, n.d. https://clsnet.org/religious-liberty-webinars.

Scharon v. St. Luke’s Episcopal Presbyterian Hospital. 929. 8th Cir. 1991.

Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich. 426. U.S. 1976.

“The Supreme Court Has Held That Same-Sex Marriage Is a Constitutional Right: What Is Next for Religious Nonprofits and Churches? – ECFA.org.” Evangelical Council for Financial Accountability, June 29, 2015. http://www.ecfa.org/Content.aspx?PageName=The-Supreme-Court-Has-Held-That-Same-Sex-Marriage-is-a-Constitutional-Right-What-is-Next-for-Religious-Nonprofits-and-Churches.

Title VII of the Civil Rights Act of 1964.

U.S. Constitution. Amendment I.

“Your Church & the Supreme Court Marriage Decision (1st Edition).” Ethics & Religious Liberty Commission of the Southern Baptist Convention, June 2013.

“Your Church & the Supreme Court Marriage Decision (2nd Edition).” Ethics & Religious Liberty Commission of the Southern Baptist Convention, June 2015. http://erlc.com/documents/pdf/ERL5010_SameSexMarriageBulletin_FINAL_color_062215.pdf.


Notes:

[1] Although general agreement exists about what churches can do to protect themselves legally, opinions are rather divided about what sort of legal problems could confront the church in years to come and how the legal situation will pan out with regard to religious liberties (for example, see Bob Smietana, “Struggle over Same-Sex Marriage’s Religious Liberty Ramifications Begins,” Gleanings | Christianity Today, June 29, 2015, http://www.christianitytoday.com/gleanings/2015/june/struggle-over-same-sex-marriages-religious-liberty-ramifica.html).

[2] Justice John Roberts, Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al., 576 U. S. 27 (2015).

[3] For instance, Solicitor General Donald Verrilli’s response to Justice John Roberts in the oral arguments of the Obergefell case regarding the potential loss of tax-exempt status for some churches raised concerns (“[I]t’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is going to be an issue.”) (Transcript of Oral Argument at 38, Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. 576 U.S. 2015). Furthermore, calls have already been made to end tax-exempt status for religious institutions (e.g., see Mark Oppenheimer, “Now’s the Time To End Tax Exemptions for Religious Institutions,” Time, June 28, 2015, http://time.com/3939143/nows-the-time-to-end-tax-exemptions-for-religious-institutions/).

[4] For example, see the strategy of LGBT activist group Freedom for All Americans: to promote legislation that prohibits LGBT discrimination and to defeat proposals that defend anti-LGBT discrimination (“How We’ll Win,” Freedom for All Americans, n.d., http://www.freedomforallamericans.org/how-well-win/).

[5] By providing this material, this author is not providing legal advice. The information and instructions contained in this paper are not intended to provide or serve as a substitute for legal analysis, advice, or consultation with trained legal counsel. Readers should not act or refrain from acting solely on the basis of this material without appropriate professional advice. This author expressly disclaims all liability relating to actions taken or not taken based on the information in this paper.

[6] For example, one can think of churches that choose not to take an official stance on these issues, permitting members and clergy to hold varying opinions. One can also think of churches that hold stricter standards for clergy than laity, e.g., practicing homosexuals may not be ordained, but may be permitted into the church’s membership.

[7] Ability to present and wrestle with these potential variegated approaches to implementation is beyond the scope of this project due to research restraints and page space limitations.

[8] Protecting Your Ministry from Sexual Orientation Gender Identity Lawsuits: A Legal Guide for Churches, Christian Schools, and Christian Ministries (Alliance Defending Freedom; The Ethics and Religious Liberty Commission of the Southern Baptist Convention, 2015), 39, https://adflegal.blob.core.windows.net/web-content-dev/documents/protecting-your-ministry-manual-english.pdf?sfvrsn=6.

[9] For example, churches that house schools, adoption agencies, housing programs, community centers, and other outreach or community-focused ministries will need to consider the unique legal challenges that accompany those ministries. They might also consider separately incorporating them for perceived legal benefits (see “Separately incorporating” below). These types of ministries are particularly susceptible to “public accommodation” claims (see “Facilities policies” below for explanation).

[10] Courts should not question an organization’s self-proclaimed religious convictions, especially if they appear in official church documentation. See Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696, 710 (1976) (the First Amendment restricts courts from resolving controversies pertaining to religious doctrine or “church polity and church administration”); id. at 713 (“religious controversies are not the proper subject of civil court inquiry”); Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116–17 (1952) (courts are prohibited from meddling in internal church disputes involving religious matters); Gunn v. Mariners Church, Inc., 167 Cal. App. 4th 206 (2008) (courts “cannot undertake . . . a mission” of determining what a church considers “moral” or “sinful”).

[11] “Church Guidance for Same-Sex Issues: Frequently Asked Questions” (Christian Legal Society, 2015), 10, http://clsnet.org/document.doc?id=863.

[12] “Church Guidance for Same-Sex Issues” (Christian Legal Society, 2015), 8, http://clsnet.org/document.doc?id=852.

[13] In clarifying its position on these matters, a church should attempt to state its position on marriage, sexuality, and gender in positive terms rather than making negative statements that single out particular sins. The latter could result in precarious legal situations (“Church Guidance: FAQ,” 3).

Where other church documents (e.g., membership policies, employee policies, facility policies, etc.) reference church convictions on these matters (i.e., marriage, sexuality, and gender), they should be consistent with or refer directly to this statement (Ibid., 3).

For sample statements of faith on marriage, sexuality, and gender see Protecting Your Ministry, 26; “Church Guidance,” 13; “A Church Statement on Human Sexuality: Homosexuality and Same-Sex ‘Marriage’ — A Resource of EFCA Churches” (Spiritual Heritage Committee, May 2013), http://go.efca.org/sites/default/files/resources/docs/2013/05/a_church_statement_on_human_sexuality_3.pdf.

For other resources that may serve helpful in composing a statement on marriage, sexuality, and gender, see “God Defined Marriage” (National Association of Evangelicals, June 26, 2015), http://nae.net/wp-content/uploads/2015/06/God-Defined-Marriage.pdf; “Manhattan Declaration: A Call of Christian Conscience” (Manhattan Declaration Inc., November 20, 2009), http://manhattandeclaration.org/; “Here We Stand: And Evangelical Declaration of Marriage” (Ethics and Religious Liberty Commission of the Southern Baptist Convention, June 2015), https://erlc.com/erlc/herewestand.

[14] Protecting Your Ministry, 5.

[15] Ibid., 5.

For a sample a statement on decision-making authority see Ibid., 6.

[16] See Kedroff, 344 U.S. at 116; or see Paul v. Watchtower Bible & Tract Society of New York, Inc., 819 F.2d 875, 880 (9th Cir. 1987) (“When the imposition of liability would result in the abridgment of the right to free exercise of religious beliefs, recovery in tort is barred”).

[17] See Guinn, 775 P.2d at 779 according to Owen v. Board of Directors of Rosicrucian Fellowship, 342 P.2d 424, 426 (Cal. App. 1959) (“A person who joins a church covenants expressly or impliedly that in consideration of the benefits which result from such a union he will submit to its control and be governed by its laws, usages, and customs”).

[18] This material is a summary and synthesis of Protecting Your Ministry, 15–16; “Church Guidance: FAQ,” 7; and “Church Guidance,” 8.

For sample membership agreement statements see Protecting Your Ministry, 16, 33; “Church Guidance,” 14-15.

[19] “Church Guidance,” 3.

[20] Protecting Your Ministry, 15, 39.

[21] Guinn, 775 P.2d at 776 (“Just as freedom to worship is protected by the First Amendment, so also is the liberty to recede from one’s religious allegiance”).

[22] Ibid., 776.

[23] Ibid., 775-77 (“The right to withdraw one’s implied consent to submit to the disciplinary decisions of a church is constitutionally unqualified; its relinquishment requires a knowing and intelligent waiver”).

[24] J. Carl Laney, A Guide to Church Discipline (Minneapolis, MN: Bethany House, 1985), 136–137.

[25] See religious employment exemptions under Title VII of the Civil Rights Act of 1964. See also 42 U.S. Code § 2000e-1(a); 42 U.S. Code § 2000e-2(e)(2); Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694, 710 (2012); McClure v. Salvation Army, 460 F.2d 553, 558 (5th Cir. 1972); Scharon v. St. Luke’s Episcopal Presbyterian Hospital, 929 F.2d 360 (8th Cir. 1991). But note, “such federal protection applies only for federal discrimination claims; it does not protect against claims brought under state or local discrimination laws, for which similar protections may or may not exist” (“Church Guidance,” 7).

Also note, use of Professional Employer Organizations (PEOs) may jeopardize these exemptions since technically the workers are employees of the PEO rather than the church. However, see state laws for possible special protections for PEO arrangements (“Church Guidance, FAQ,” 9).

[26] The following suggestions are synthesized and summarized from Ibid., 9–10; “Church Guidance: FAQ,” 9; Protecting Your Ministry, 9, 11.

[27] These standards of conduct should (1) make clear standards related to sexuality and gender identity and (2) include a statement explaining that these requirements reach beyond the church building and official work hours (“Church Guidance: FAQ,” 8, 9).

[28] It may also be wise to require employees to sign such documents on an annual basis (“Church Guidance,” 10).

[29] This exemption extends to the state level per Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829 (6th Cir. 2015).

[30] Churches do not need to restrict this language to church offices (e.g., pastors, deacons, etc.) but may, for the sake of ensuring greater legal protections, use this language for any position charged with performing the organization’s religious rituals or communicating its beliefs. Of course, providing a job description that demonstrates the validity of this label is helpful (“Church Guidance: FAQ,” 8).

[31] 42 U.S. Code § 2000a.

[32] See “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin” (Ibid.)

[33] “Church Guidance: FAQ,” 4.

[34] Protecting Your Ministry, 13.

[35] “Church Guidance,” 7.

Such rights of access have already been recognized in the private sector despite appeals to Christian convictions (e.g., florists [see Ingersoll v. Arlene’s Flowers], camps [see Bernstein, et al. v. Ocean Grove Camp Meeting Association], photography [see Elane Photography v. Wilcock], and wedding chapels [see Knapp v. City of Coeur d’Alene]).

Note: some state’s same-sex marriage laws passed (before Obergefell) made religious exemptions for church facilities (e.g., Illinois, Vermont, Hawaii, Washington, New York, Connecticut, District of Columbia, Minnesota, New Hampshire, Rhode Island, Maryland, and Utah). However, according to the Christian Legal Society, the constitutionality of those exemptions may be challenged post-Obergefell (“Church Guidance: FAQ,” 4).

[36] Protecting Your Ministry, 13.

[37] “Church Guidance: FAQ,” 5.

[38] Protecting Your Ministry, 13.

[39] A synthesis and summary of “Church Guidance,” 8; Protecting Your Ministry, 13.

Note: “A church’s permitted uses need not necessarily all be worship or Bible study, but they should at least be in furtherance of the church’s religious mission (e.g., outreach to the homeless or to teens needing a safe refuge, etc.)” (“Church Guidance,” 8-9).

[40] “Church Guidance,” 9.

[41] Ibid.

For sample facility policies, see Protecting Your Ministry, 28; “Church Guidance,” 17-18.

[42] “Church Guidance: FAQ,” 5.

[43] Ibid., 4.

[44] Protecting Your Ministry, 13.

[45] “Church Guidance,” 17.

[46] Ibid., 9; see 42 U.S. Code § 2000a.

[47] “Church Guidance”, 9, 16; see 42 U.S. Code § 2000a.

For sample marriage policies see Protecting Your Ministry, 17; “Church Guidance,” 16.

[48] For example, signers of “The Marriage Pledge” seek to “to separate civil marriage from Christian marriage” and have committed themselves to “disengaging civil and Christian marriage in the performance of our pastoral duties. We will no longer serve as agents of the state in marriage. We will no longer sign government-provided marriage certificates. We will ask couples to seek civil marriage separately from their church-related vows and blessings.” They argue, “To continue with church practices that intertwine government marriage with Christian marriage will implicate the Church in a false definition of marriage” (Ephraim Radner and Christopher Seitz, “The Marriage Pledge,” First Things, n.d., http://www.firstthings.com/marriage-pledge; see also Ruth Moon, “Time To Rend Marriage? 1 in 4 Pastors Agree with First Things Petition,” Gleanings | Christianity Today, December 2, 2014, http://www.christianitytoday.com/gleanings/2014/december/time-to-rend-marriage-1-in-4-pastors-first-things-lifeway.html). Evaluating the theological reasoning for such a stance is beyond the scope of this paper.

[49] “Church Guidance: FAQ,” 4-6.

Note that religious protection for ministers is expressed in some states’ (pre-Obergefell) same-sex marriage laws (e.g., Connecticut, District of Columbia, Delaware, Hawaii, Illinois, Maryland Minnesota, New Hampshire, New York, Rhode Island, Utah, Vermont, and Washington) (“Church Guidance: FAQ,” 6).

[50] Ibid., 10.

[51] Ibid., 10–11.

[52] Ibid., 10.

[53] Kirk E. Miller, “Church Discipline: The Practice of a Loving Church Taking Sin Seriously,” October 2011, 29; Matt Davis, “How to Avoid Being Sued for Your Ministry Counseling” (Gibbs Law Firm, P.A., 2006), 3; Jay E. Adams, Handbook of Church Discipline (Grand Rapids, MI: Ministry Resources Library, 1986), 32.

Such agreements should also include confidentiality exemption for cases of mandated reporting (e.g., see “Manual for Mandated Reporters [Revised Edition]” [Illinois Department of Family Services {Children’s Justice Task Force}, May 2015], https://www.illinois.gov/dcfs/safekids/reporting/Documents/cfs_1050-21_mandated_reporter_manual.pdf).

[54] Matt Davis, “How to Avoid Being Sued,” 2, 6, 9, 10.

Also note that criminal sanctions may be imposed on those charging fees for non-professional counseling (Ibid., 10).

[55] Ibid., 1, 6–7.

[56] Ibid., 5.

[57] For an example see Christian Counseling & Educational Foundation’s certification program (http://www.ccef.org/courses/certificates).

[58] Matt Davis, “How to Avoid Being Sued,” 3.

[59] Ibid., 8–9.

[60] Ibid., 7.

[61] Ibid., 5–6.

[62] Ibid., 10–11.

[63] For example, see Alissa Scheller, “48 States Still Allow This Ridiculous Thing, But California’s Now Free To Ban It,” The Huffington Post, July 3, 2014, http://www.huffingtonpost.com/2014/07/03/gay-conversion-therapy_n_5548982.html; Angela Delli Santi, “Christie Signs Ban On Gay Conversion Therapy,” The Huffington Post, August 19, 2013, http://www.huffingtonpost.com/2013/08/19/chris-christie-gay-conversion-ban_n_3779489.html; Joseph Erbentraut, “Another State May Soon Ban Gay Conversion Therapy For Minors,” The Huffington Post, March 26, 2014, http://www.huffingtonpost.com/2014/03/26/gay-conversion-therapy-illinois_n_5036918.html; Lila Shapiro, “This Bill Could End ‘Gay Conversion Therapy’ In The U.S.,” The Huffington Post, May 19, 2015, http://www.huffingtonpost.com/2015/05/19/conversion-therapy-ban_n_7322828.html; Lila Shapiro, “First Ever Law To Protect Gay ‘Cure’ Proposed In Oklahoma,” The Huffington Post, January 30, 2015, http://www.huffingtonpost.com/2015/01/30/gay-cure-law_n_6573710.html; Marina Fang, “The Country’s First Openly Bisexual Governor Bans Gay Conversion Therapy In Her State,” The Huffington Post, May 19, 2015, http://www.huffingtonpost.com/2015/05/19/oregon-gay-conversion-therapy-ban_n_7337350.html.

At present, California, New Jersey, Oregon, and Washington D.C. all have bans prohibiting “conversion therapy” for gay, lesbian, bisexual, and transgender youth.

[64] “Church Guidance: FAQ,” 4; “Church Guidance,” 4; Protecting Your Ministry, 11.

[65] For example see Konkel v. Metropolitan Baptist Church, Inc., 572 P.2d 99 (Ariz. 1977); LeBlanc v. Davis, 432 So. 2d 239 (La. 1983); First Baptist Church of Glen Este v. State of Ohio, 591 F. Supp. 676 (S.D. Ohio 1983); Hatcher v. S. Carolina Dist. Council of the Assemblies of God, Inc., 226 S.E.2d 253 (S.C. 1976).

[66] “Church Guidance,” 11.

[67] Stanley Carlson-Thies, “Faith-Based Organizations After the Supreme Court’s Same-Sex Marriage Decision,” Institutional Religious Freedom Alliance, n.d., http://www.irfalliance.org/faith-based-organizations-after-the-supreme-courts-same-sex-marriage-decision/.

[68] “One important caveat for churches and other nonprofits: be careful with political campaign prohibitions and lobbying restrictions for nonprofits. Political campaign activity may be done personally but is absolutely prohibited for churches and other nonprofits. Lobbying may be done corporately but only to a limited extent” (“Church Guidance,” 12).

[69] For example, consider Bob Jones University v. United States, 461 U.S. 574 (1983) where Bob Jones’ religious motivations for prohibiting interracial dating were not considered worth protecting in competition with “public policy.”

[70] Dan Guarnera, “Legal Considerations for Churches Post-Obergefell,” FaceTime, October 9, 2015; see also Carl Esbeck’s statements to Christianity Today in Bob Smietana, “Struggle over Same-Sex Marriage’s Religious Liberty Ramifications Begins,” Gleanings | Christianity Today, June 29, 2015, http://www.christianitytoday.com/gleanings/2015/june/struggle-over-same-sex-marriages-religious-liberty-ramifica.html.

[71] Tyler Chernesky, “Preliminary Suggestions for More Hospitable Language in the ‘Trinity International University Policy on Human Sexuality,’” n.d.

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One thought on “Legal Protections for the Church in Light of SOGI Rights and Laws

  1. Kirk, I think you will tackle any subject? ! ? ! ? Go for it. Make yourself heard God Blesssssss Papa

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