Why Pastors/Churches Will NOT Have to Do Same-Sex Weddings

By Raul Rivera

It has been nearly a month since the Supreme Court ruled that same-sex marriage is a constitutional right. In a previous blog post I addressed what we know from the ruling as well as some of the uncertainties that stem from it.

While there are many voices on both sides of the spectrum expressing their thoughts and opinions on the matter, there still remains an ambiguous cloud of doubt that must be addressed. Because of this lingering uncertainty, the most pressing questions being asked by pastors and church leaders are:

1. Will pastors be forced to perform same-sex weddings?” and;

2. Will churches be required to allow same-sex weddings in their sanctuary?

Here is my short answer . . . No! I say this within the meaning of the Supreme Court Ruling that legalized same sex marriage in all fifty states.  In other words, the ruling did not place any requirements on churches and ministers.

Another reason why I believe ministers and churches will not have to perform same-sex weddings within the meaning of the Supreme Court ruling, is that there is abundant First Amendment precedent giving churches the protections they need to exercise their disciplines of faith.  In order to take advantage of those protections, churches and ministers need to ensure that certain steps be taken, which I will later detail. Now let me explain why I believe that churches and ministers will continue to be free to practice their disciplines of faith without government interference.

First Amendment protections

I base my opinion largely on the principles upon which this great nation was founded; more specifically, the principle of religious freedom. 

Intended to ensure a free exchange of ideas, even if unpopular, Congress passed the First Amendment in 1791 prohibiting the government from obstructing the exercise of certain individual freedoms, which includes religious freedom. Included within the First Amendment are two provisions concerning religion: the Establishment Clause and the Free Exercise Clause.

The Establishment Clause prohibits the government from establishing an official “state-sponsored” religion, and it prevents the government from taking actions that favor one religion over another. This clause also prohibits the government from preferring religion over non-religion, or non-religion over religion.

The Free Exercise Clause protects citizens’ rights to accept any religious belief, and the clause protects not only those beliefs but also the right to exercise those beliefs. In essence, this clause allows us to act upon and carry out our sincerely held religious beliefs. This is a good thing! 

3 reasons why…

Below are just a few cases and laws that help make my point. 

In Abington School District v. Schempp, 374 U.S. 203 (1963), the Supreme Court held that the First Amendment requires that the “Government maintain strict neutrality, neither aiding nor opposing religion."  This case supports the notion that a state or the federal government cannot pass a law forcing ministers to engage in activity that is purely religious.

Religious Freedom Restoration Acts: In 1993, Congress passed the Religious Freedom Restoration Act. The Supreme Court limited the reach of the RFRA in 1997.  Since then, multiple states have passed their own versions of that law. In essence, these laws prevent the government from enforcing laws that place a substantial burden on free exercise of religion – unless the government can show that applying the laws is the least restrictive means of serving a compelling government interest. There are two ways that a law could place a substantial burden on the free exercise of religion. The first way is when the government passes is a law that restricts the free exercise of religion, and the second way is when the government passes a law that forces one to actually participate in a religious activity. It is doubtful that any court in America will uphold a law that forces someone (or a church) to participate in a religious activity.

Burwell v. Hobby Lobby Stores, Inc.: This case involved closely-held for profit corporations.  The corporation’s owners objected to a government requirement that the corporation provide contraception to the corporation’s employees as part of the company’s insurance plan.  The company filed a lawsuit that reached the Supreme Court.  The Supreme Court held that, as applied to closely held for-profit corporations, the regulation imposing contraception violates the Religious Freedom Restoration Act.  The Court said government action that imposes a substantial burden on religious exercise must serve a compelling government interest and it must also constitute the least restrictive means of serving that interest. For ministers, this case supports that idea that for laws that require ministers and churches to participate in same-sex weddings against their will to be upheld, the government will have to prove that marriage as a religious ceremony is a valid government interest. The government will not be able to argue that specifically requiring ministers and churches to conduct same-sex weddings is the least restrictive means of serving that interest when same-sex couples can simply go to the courthouse or any other qualified official.

5 steps to take to better protect your church

Below are 5 actions that you can take to better protect your church's First Amendment Rights.

1.    Make sure that your organizational documents indicate you are a church. It is important that your articles of incorporation clearly indicate that you are organized and established as a church entity. To ensure that you are indeed organized as a church, you will want to make sure that it is clearly stated within the purpose statement of your articles of incorporation. Many churches that go through our StartRIGHT™ Program Program choose to include the following language:

“to establish and oversee places of worship, teach and preach the gospel to all people, conduct evangelistic and humanitarian outreach, license and ordain ministers of the gospel.”

Once you are certain that your articles of incorporation clearly define that you are a church, you will want to review your bylaws.

2.     Make sure that your bylaws contain “protective” language. The most important document your church has in its arsenal is its bylaws. Your bylaws should reflect the nature of your church. While it is advantageous to include language in your bylaws that indicates you are a church, you will also want to make sure the bylaws include language that is protective in nature. For instance, a popular clause that churches in our StartRIGHT™ Program include in their bylaws is the prohibited activities clause. This clause simply states that the church is prohibited from participating in activities that violate its written doctrines, and in addition, the church is prohibited from allowing any of its assets to be used for activities that violate its written doctrines.

3.     Make sure that your 501(c)(3) approval letter indicates that you are approved as a church. This probably comes across as no surprise, but the IRS is not immune from making mistakes. Because of this, if you have already received 501(c)(3) approval, it is important that you check your approval letter to verify that your church has indeed been approved as such.

Now, the approval letter you received from the IRS will not blatantly say, “You are approved as a church.” Therefore, in order to verify that you are approved as a church, you will need to look towards the top right portion of your approval letter. Where it reads “Public Charity Status” it will indicate a portion of the tax code. The “Public Charity Status” on the approval letter for churches should read 170(b)(1)(A)(i). If your approval letter reads differently, then the IRS does not have you classified as a church for tax purposes.

Additionally, right beneath the public charity status, your church’s approval letter should indicate that it is not required to file Form 990. If either the “Public Charity Status” or “Required Form 990” portion of your approval letter reads differently, then it is imperative that you get those changed.

4.     Make sure that you are operating as a church. It is one thing to be organized and approved as a church, and it is another thing to be operating as a church. Although there is no clear-cut definition of a church for tax purposes within the tax code, the IRS does have an informal guide it uses to help give definition. The important thing to take away from this is to make sure that you are operating according to your purpose statement, and make sure that you are holding regularly scheduled worship services.

5.     Make sure that you are properly ordained. If you were to do an Internet search for online ordinations, you would find no shortage of available options. Many of these sites fall well short of meeting the requirements of valid ordination. Therefore, as a minister with sincerely held religious beliefs, you will want to make sure that you have received a proper ordination as a minister of the gospel. To help you with this matter, our Minister’s Suite provides you with the tools you need to know about properly establishing a licensing and ordination program within your church. For more information, you can also check out one of my previous blog posts on proper ordination by clicking here.

Closing thoughts

In today's challenging legal landscape, why would anyone dare start a new church? The answer is simple: “For God so loved the world”. In 1993, when my father started a new Spanish church, I came alongside him because “God so loved the world”. It was not because I perceived the legal landscape to be easy. I am certain that the apostles and disciples in Jesus’ day had a more significant set of challenges before them and they had no First Amendment, yet they managed to impact the entire world of their day.

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