Bar the doors?
The U.S. Supreme Court’s gay marriage decision may increase the likelihood churches will face LGBT lawsuits. Here’s how some are protecting themselves
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Chris McCombs was driving his freshman daughter home from summer camp on Friday, June 26, when a text message blinked on his phone with the news: The U.S. Supreme Court had just declared same-sex marriage legal in all 50 states.
The senior pastor from Cuyahoga Falls, Ohio, felt stunned. But he knew it wasn’t the time for silence. He canceled his planned Sunday sermon about the Charleston shooting and decided instead to preach about marriage.
That weekend, McCombs stood in front of a congregation of 170 at Broadman Baptist Church and asked people to open their Bibles to the words of Jesus from Mark Chapter 10. “But from the beginning of creation, God made them male and female. Therefore a man shall leave his father and mother and hold fast to his wife,” he read. “Are we going to believe God, and even Jesus, or are we going to believe the world? … Culture has this wrong, you all.”
The pastor told his church members they needed to love their gay neighbors, yet be prepared for persecution and prosecution. He reminded them bakers and photographers have already faced lawsuits and fines for refusing to participate in same-sex weddings.
“The church and charities are the next target. Mark my words as a prophet right now,” he said, raising his right hand. “I’m telling you, it’s coming.”
Prophet or not, lawyers agree with McCombs’ prediction of a legal attack on religious nonprofits and churches. The Supreme Court’s gay marriage ruling, Obergefell v. Hodges, has created a new legal climate across the United States, and what once was considered sacred—American religious liberty—has been overshadowed by homosexual “civil rights.” Pastors are worried courts may try to force their churches to recognize gay marriage or hire gay employees.
“My phone was ringing off the hook there for a few days,” said Lane Moore, the director of the Northwest Louisiana Baptist Association, which helped organize a July seminar for up to 400 local pastors and church leaders in response to the Obergefell ruling. Moore said pastors repeatedly asked him, “What are we going to do? What are we going to do?”
Pastors need not panic, but half a dozen attorneys and legal experts WORLD contacted agreed the risks are real. Although churches are likely safe for the time being, they need to take concrete steps to maximize their legal protections. The question: Will they be able to do so without isolating themselves from the surrounding communities many hope to serve?
Nondiscrimination laws have already hammered nonprofits. In New Jersey, the civil rights division forced Ocean Grove Camp Meeting Association, a Christian camp, to stop hosting weddings at its beach pavilion because it did not allow same-sex weddings. In Idaho, the owners of the Hitching Post, a for-profit wedding chapel, are in a lawsuit with the city of Coeur d’Alene over whether they may turn away gay couples without the threat of fines or jail time.
Although apparently no church has yet been sued for declining to host a homosexual wedding, some gay couples have already asked evangelical pastors to perform marriage ceremonies or admit them to church membership. Legal experts say activists may focus their attention on churches in coming years, testing legal arguments that might persuade a progressive judge to rule against a church holding to biblical standards of sexuality.
Churches have a powerful legal defense in their corner: the First Amendment, which prevents the government from prohibiting the “free exercise” of religion. Churches have so far been exempt from laws meant to prevent discrimination at places of public accommodation on the basis of race, sex, religion—or now—sexual orientation. It seems unlikely a court would force a church to host a same-sex wedding, but the question of churches and gay rights has not been litigated, so it’s difficult to make predictions. LGBT activists might appeal to “nondiscrimination” policies to argue a church cannot fire gay employees or turn away gay couples who want to rent church facilities.
All it takes is one or two motivated individuals for a lawsuit to arrive, said Jeremiah Galus, an attorney at Alliance Defending Freedom. “We know there are those out there that aren’t happy that churches are exempted from these laws.”
Worries about accusations of discrimination are already complicating some church efforts to build bridges with communities.
At Broadman Baptist, a church committee is re-evaluating whether to continue allowing the board members of a condo complex across the street to meet in the church fellowship hall for a fee of $50. McCombs is concerned that by renting the hall to community groups for nonreligious purposes, a same-sex couple might argue it also has a right to the space. At the same time, he’s frustrated, because he wants his church to have open arms to the neighborhood.
“We have voting here. But we’re thinking about stopping that because we don’t know what the government is going to do,” he said. “We have to protect ourselves now.”
THE WAY FOR CHURCHES to protect themselves, lawyers say, is to make sure their beliefs are clearly written and consistently practiced. That means they can’t wait until activists come knocking. They need to review their constitution and bylaws now to ensure they clearly state, for example, whether the church believes marriage consists of one man and one woman.
Many churches had already made such revisions before the Obergefell ruling, and others rushed to do so afterwards.
Greg Dumas, the lead pastor at The Crossing Church in Tampa, Fla., said that within weeks of the Obergefell ruling his office received an email from a woman asking if a pastor would marry her and her partner. The church leadership declined the request. After getting counsel from the Texas-based Liberty Institute, church officers updated the church’s constitution and bylaws to define marriage as between a male and female, as determined by birth sex. Dumas also made a public statement about the church’s beliefs regarding marriage.
“I think that as the world gets darker, the church gets brighter. We’ve got a great opportunity in this time to speak the truth in love,” Dumas said.
Mike Johnson, an attorney and Louisiana state representative, said his nonprofit law firm Freedom Guard is reviewing bylaws for about 30 churches, and has since July presented how-to seminars for over 2,000 pastors and ministry leaders: “You can’t just say, ‘Oh, it’s in the Bible, we believe it’ now. You need to have very specific things on paper so that it does provide an actual exhibit for the court—as crazy as this sounds—for your legal defense.”
One of Johnson’s clients is Summer Grove Baptist Church in Shreveport, La. Executive Pastor Dwayne McDow said the church leaders had to turn down a lesbian couple’s request to become members many months ago. The couple disagreed with the leadership’s decision, but maintained a friendly relationship with the church and continued to attend worship services until moving out of town.
Since then, Summer Grove has recognized the need for a written policy. In March the congregation voted to amend the church constitution and bylaws to define the church’s beliefs regarding marriage and sexual practice, and to require members to be “living in accord” with those standards. McDow said he hoped anyone who disagreed with Summer Grove’s beliefs would still feel they had been treated with “dignity and respect, understanding God loves them.”
Last year Broadman Baptist added a marriage definition to its bylaws. And this year—nine days after Obergefell—the congregation unanimously voted on additional policy changes restricting facility use only to events that align with the church’s “ministry, religious, and worship purposes.” The church also added language defining wedding ceremonies as “a form of worship.”
Legal aid groups like ADF and the Christian Legal Society have published guides meant to help churches minimize the risk of lawsuits or discrimination charges. They say churches don’t need to bar all outside groups from their property or stop renting their buildings for weddings and receptions. But if they do rent, they should consider charging less than market rates, so they look more like a church and less like a business.
Could a church be sued for firing a gay staff member? A major 2012 Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, ruled the government should not be involved in telling churches which “ministerial” employees they are allowed to hire or fire. That gave churches broad immunity from employment discrimination laws—at least when it comes to ministers.
The problem is that the Supreme Court left vague the question of who qualifies as a minister. “There’s this fuzzy area of, what about janitors?” said David Nammo, the executive director of the Christian Legal Society. “That has yet to be determined. And none of this has been litigated on the gay rights issue.”
Churches should consider writing detailed job descriptions for every employment position, specifying how it relates to the church’s religious mission. ADF, for example, recommends requiring employees to participate in devotional meetings, and requiring receptionists to be able to pray with callers or answer questions about the church’s beliefs.
A KEY COMPONENT to a church’s legal defense is that it must be consistent in how it applies its beliefs. A judge would likely consider a church inconsistent if it refused to host a gay wedding yet hosted a pro-gay marriage conference on its property.
The question of consistency has some church leaders wondering about another kind of relationship: Their sponsorship of Boy Scouts of America. Over the summer the organization dropped its ban on openly gay Scout leaders. Although BSA still allows churches and religious organizations sponsoring troops to ban gay leaders, could a church’s partnership with BSA open it up to a discrimination lawsuit?
The uncertainty has motivated some churches to bail on Boy Scouts. First Associate Reformed Presbyterian Church in Lancaster, S.C., ended a 65-year-old relationship with BSA in July, concerned about the organization’s softened stance toward homosexuality and about legal entanglements. It had hosted Cub Scout and Boy Scout units involving more than 60 families in the church and community.
“We don’t have time or resources to fight a frivolous lawsuit,” said Kyle E. Sims, the pastor. “We felt like it was an unnecessary risk. … We’re not trying to be negative toward the Boy Scouts.”
First ARP Church has instead begun sponsoring a troop with Trail Life USA, an alternative Christian scouting group. Trail Life’s general counsel, former Boy Scouts counsel Richard John Mathews, argues that the Boy Scouts’ new policy allowing gay leaders could jeopardize a church’s religious freedoms. For example, an activist judge might argue that since a church allows Boy Scouts to use its building, it must also open its space to other organizations that sanction homosexual relationships. Otherwise, the church is inconsistently applying what it claims are sincere religious beliefs about sexuality.
That argument is hypothetical at this point, and legal experts are divided about the likelihood of such a court ruling. BSA firmly denies its gay leader policy will leave churches vulnerable to lawsuits.
Ted Spangenberg Jr., the president of the Association of Baptists for Scouting, agrees with BSA’s legal analysis and thinks churches that pull out of Boy Scouts are making a mistake. The Boy Scouts’ popular brand gives churches an evangelistic opportunity to reach unchurched families, he said. “I want them to do Scouting with a troop that upholds what I believe—biblically consistent moral values. And so I want that evangelical church to be there with a troop for that family.”
L. David Henningson, a Minnesota attorney, pointed out the dilemma churches face: Avoiding legal entanglements with Boy Scouts and similar organizations means missing opportunities for interaction with the community. “It’s starting to cut off the ability of the church to be involved in the Great Commission,” he said.
For some churches, reducing risks while maintaining relationships might require getting creative. Instead of hosting a “trunk-or-treat” event on church property this year, Broadman Baptist members plan to go “tract-or-treating,” passing out candy and gospel tracts door-to-door in the neighborhood. (McCombs said he expects to host trunk-or-treat again next year, after the church’s facility use policy is revised.)
One thing attorneys say churches shouldn’t do is stay silent. Pastors should preach regularly on biblical sexuality so that both members and outsiders know where the church stands. That’s the opposite of what LGBT activists want.
McCombs said he realizes some people will construe any opposition to same-sex marriage as discrimination: “Whenever you open your mouth in disagreement, no matter how gentle you are, you’re labeled.”
After McCombs and his wife and three kids went to bed the Friday night of the Obergefell ruling, someone took sidewalk chalk and wrote “#lovewins GAY IS OK!!” on the family’s driveway under the cover of dark.
On Saturday, McCombs sprayed off the red and blue chalk with a hose. And on Sunday, he exhorted his congregation to show kindness to their gay friends and neighbors: “We need to be gracious to them. We need to plow their driveway.”
McCombs later told me, “We want to love everybody, best we can. … [But] we’re not going to condone and compromise our view.”
Meanwhile, he has made clear to his congregation the legal dangers Obergefell has created. The church committee is making final revisions to Broadman Baptist’s facility use policy, and hopes to submit them to a congregational vote by the end of the year. It will be Broadman’s third set of revisions in two years related to marriage or facility use.
“I think the church needs to take responsibility, and that’s why we’re doing what we’re doing right now,” McCombs said. “I wish I could sit here and say this is a waste of time.”
If a church does get sued, its defense costs might be covered under its general liability insurance policy. Or might not: Robert Bates, the president of Southern Mutual Church Insurance Company, said a lawsuit filed by a same-sex couple wouldn’t be covered under his company’s liability policy unless the couple was alleging bodily or personal injury.
But in response to the changing legal landscape, Southern Mutual last year began offering an add-on policy that would cover miscellaneous cases, including a same-sex marriage lawsuit.
“This is a unique coverage that our company has designed at the request of our churches to protect them,” said Bates, whose company insures churches, synagogues, and mosques in Tennessee, North Carolina, South Carolina, and Georgia. The add-on policy would not cover court fines resulting from a lost case.
The Wisconsin-based Church Mutual Insurance Company offers similar protection policies that apply differently depending on the facts of the case, according to company officials. Churches should speak to their insurance agent to see which lawsuits would be covered. And whether for insurance or bylaw revisions, churches should always consult a local attorney, since laws vary from state to state. —D.J.D.
—with reporting by Katie Gaultney
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