Is your nonprofit ready?

Attorney Jim Campbell, who handles various constitutional cases for the Alliance Defending Freedom (ADF), has a working list written down at his office in Scottsdale, Ariz. The list details benefits religious nonprofits could lose if the Supreme Court makes gay marriage a constitutional right. When he arrived at work recently, he read it off: 501(c)3 status, tax benefits, government licensing, accreditation, and government contracts or grants, among others.

More conflicts will also arise in the professional world: the religious counselor who loses her professional license over her views on marriage, or the religious florist who is fined because she serves gay couples generally but doesn’t want to design gay wedding arrangements.

“Are we going to get a court decision June 25, and June 27 the federal government files a lawsuit [against a church or nonprofit]?” said Campbell.

“No, we’re not going to see that.” But he and other religious freedom lawyers think that process could unfold within the next year.

The extent of the threat to Christian churches, schools, and nonprofits will turn on how the Supreme Court rules on the marriage cases at the end of June. Even if the court does legalize gay marriage nationwide, as many expect, it could rule in different ways that would be more or less threatening to religious groups. And in the months after the ruling, much will turn on how aggressive federal and state governments decide to be toward nonprofits and churches. The main thing organizations can do now to prepare is to state their religious stances on sexuality and marriage clearly in writing in anticipation of potential lawsuits (see sidebar).

If the high court says state marriage laws violate the 14th Amendment, which guarantees equal protection and due process, it could rule two different ways. First, the court could say that gay marriage is a fundamental constitutional right. Or, the court could say that state marriage laws are violating equal protection, because they’re excluding gay people from the marriage institution. Both of those approaches would have serious implications for Christian organizations.

However the court rules on the 14th Amendment, the worst outcome for religious organizations would be if the justices decide that sexual orientation is a new protected class. Sexual orientation isn’t a protected class like race or gender at the federal level currently, and the lawyers arguing for gay marriage did not ask the court to create that new class. But the court could do so. Also, a ruling that says traditional marriage laws are based on “animus” toward gay couples, a word Justice Anthony Kennedy has used in his past gay rights rulings, would also be harmful to nonprofits.

A number of Christian denominations and organizations including the National Association of Evangelicals signed an amicus brief in the marriage cases that urged the court to avoid an “animus”-based ruling.

“A decision that traditional marriage laws are grounded in animus would demean us and our beliefs,” said the brief. “It would stigmatize us as fools or bigots, akin to racists. In time it would impede full participation in democratic life, as our beliefs concerning marriage, family, and sexuality are placed beyond the constitutional pale. … Because we cannot renounce our scriptural beliefs, a finding of animus would consign us to second-class status as citizens whose religious convictions about vital aspects of society are deemed illegitimate.”

‘Because we cannot renounce our scriptural beliefs, a finding of animus would consign us to second-class status as citizens whose religious convictions about vital aspects of society are deemed illegitimate.’ —Wording from an amicus brief that urged the court to avoid an “animus”-based ruling.

The court could legalize gay marriage in potentially less harmful ways. In the arguments, Chief Justice John Roberts suggested that the court could resolve the issue by concluding state marriage laws counted as sex discrimination, rather than discrimination on the basis of sexual orientation. He explained: “If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex.” If the court decided the case on those grounds, it wouldn’t be creating a new protected class.

“I have talked to one person who thinks that would be the least bad way for us, if we lose,” said Kim Colby, senior counsel for the Christian Legal Society. “Sex discrimination has been in the law 40, 50 years and religious liberty has managed to be OK. Courts are more familiar with that. Sex does not trump religious liberty.” Catholics, Orthodox Jews, and some evangelicals discriminate on sex, for example, limiting their priests, rabbis, and pastors to men.

Though the question of religious freedom isn’t before the Supreme Court, the court could issue what’s called “dicta” in its ruling on the matter, saying what effect the ruling has on religious freedom. Dicta are not binding, but lower courts take them seriously. A dicta on religious freedom in a gay marriage ruling is not ideal because the court can’t draw up all the specific exemptions for religious groups that a state legislature could.

If the court issues a bad ruling, most action against religious institutions would come from governments, not necessarily gay groups. In the Supreme Court arguments, Justice Samuel Alito asked Solicitor General Donald Verrilli Jr., the lawyer representing the federal government, about the case where the Supreme Court stripped Bob Jones University of its tax-exempt status over its opposition to interracial dating and marriage. Would the same principle apply to a college that opposes same-sex marriage?

Verrilli replied: “I don’t think I can answer that question without knowing more specifics, but it’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.”

“That’s pretty scary,” said Colby.

Federal, state, and local governments will approach, and have already approached, these conflicts with different levels of aggression. The District of Columbia, for one, has generally ignored the concerns of religious groups since it legalized gay marriage in 2009. The gay marriage law included no religious exemptions besides allowing groups not to perform or host gay weddings. The D.C. government informed Catholic Charities, the largest private provider of social services in D.C., that it must facilitate adoptions with gay couples. The group had to shutter its foster and adoption services as a result.

Then this past fall, the D.C. Council took up a proposal to repeal the exemption for religious colleges from its nondiscrimination statute.

Georgetown University initially won the exemption, known as the Armstrong Amendment, back in 1989, but has since dropped support for it. The measure exempted religious colleges from providing funds, space, benefits, or any endorsements of gay groups or individuals. At the end of September 2014, a D.C. Council committee held a hearing on repealing the measure.

Richard Rosendall, president of the Gay and Lesbian Activists Alliance of D.C., testified in favor of repealing the religious exemption, calling it a “relic of a battle won long ago.”

The only person to testify against the repeal was Catholic University of America’s general counsel Larry Morris. He chose his words carefully. He said, in line with Catholic teaching, the university has a pledge to “reject and witness against” those who mistreat people based on race, sexual orientation, or disability, but that the church’s teaching about sexuality is also clear. “We cannot yield on our freedom … and hope you see that removing the protection that the law currently provides would implicate the district in intruding into an area that our founders rightly reserved to us,” he said. The council disregarded Morris’ testimony and repealed the measure unanimously.

California has also been aggressive, with the Boy Scouts of America bearing the brunt of the conflict. Most people don’t think of the group as religious, but Boy Scout members must subscribe to a “Declaration of Religious Principle” that swears “a duty to God.” The group also forbids “open or avowed homosexuals” from being troop leaders. (Former Secretary of Defense Robert Gates, now president of the Boy Scouts of America, on May 21 called on the group’s board to end the ban on gay troop leaders.)

In 2013, the California Senate voted to strip the group of its tax-exempt status, but the measure died in the Assembly. In January the California Supreme Court banned state judges from belonging to the organization, ruling that judges aren’t allowed to be a part of “invidiously discriminatory organizations” even if they were “youth groups.”

Last year Colby wrote a letter to the state Supreme Court when it was first considering banning judges participating in the Boy Scouts, saying it “echoes past targeting of other politically disfavored organizations.” Today she says, “There are a lot of controversies out there that are simmering that will go to full boil if the court rules in favor of redefining marriage.”

A handbook for ministries

Alliance Defending Freedom lawyers worked up a handbook several months ago for Christian churches and organizations on steps to protect themselves from lawsuits arising from the legalization of gay marriage. The handbook has a checklist for religious groups to get their theology of marriage and sexuality in writing: statement of faith, religious employment criteria, facility use policy, formal membership policy (for churches), admissions procedures (for schools), and so on. All religious groups should have job descriptions that explain how the position serves the group’s religious mission.

Kim Colby, senior counsel with the Christian Legal Society, added her own advice: Groups should apply sexuality standards consistently for homosexual and heterosexual conduct. And documents should also make clear who is the final authority in an institution: a person, not just Scripture.

That would protect a school, for example, if someone is admitted to a school, but the person in authority decides that admission is inappropriate.

“We evangelicals are very uncomfortable with this idea, but we do it in practice,” she said. “We don’t have a pope, but someone makes the final decision about how Scripture applies to a situation.” —E.B.