On June 26, 2013, the United States Supreme Court issued two rulings addressing same-sex marriages. In the first ruling, the Court struck down a provision in the federal Defense of Marriage Act (“DOMA”) defining marriage for purposes of federal law as a union between a man and woman. In the second case, the Court dismissed on technical grounds an appeal of a 2010 federal district court ruling invalidating on constitutional grounds a referendum by the voters of California (“Proposition 8”) that amended the state constitution to define marriage as a union between a man and woman. Both cases are addressed in this article, along with an assessment of their effects on churches and other religious organizations.
The Defense of Marriage Act
United States v. Windsor, 2013 WL3196928 (2013)
In 1996, as some states were beginning to consider same-sex marriages, and before any state had acted to permit them, Congress enacted the Defense of Marriage Act (DOMA). DOMA contains two main provisions. Section 2 allows states to refuse to recognize same-sex marriages performed under the laws of other states. Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
In short, section 3 defines “marriage” for purposes of federal laws and regulations as a union between a man and woman. Same-sex marriages are not recognized even if allowed under state law. This definition of marriage—for purposes of all federal statutes and other regulations or directives covered—controls more than 1,100 federal laws in which marital or spousal status is addressed.
Facts of the Case
Two women met in New York City in 1963 and began a long-term relationship. They registered as domestic partners when New York City gave that right to same-sex couples in 1993. One of the partners died in 2009, and left her entire estate to the surviving partner (the “plaintiff”). Because DOMA denied federal recognition to same-sex spouses, the plaintiff did not qualify for the marital exemption from the federal estate tax, which excludes from taxation “any interest in property which passes or has passed from the decedent to his surviving spouse.” As a result, the plaintiff paid $363,053 in estate taxes and sought a refund. The IRS denied the refund, concluding that, under DOMA, she was not a “surviving spouse.” The plaintiff filed suit in federal court, seeking a refund of the taxes she paid. She claimed that DOMA violates the guarantee of equal protection of the laws as applied to the federal government under the Fifth Amendment to the United States Constitution.
A federal district court in New York ruled that section 3 of DOMA was unconstitutional and ordered the government to refund the tax, with interest, to the plaintiff. A federal appeals court affirmed this ruling, and the case was appealed to the United States Supreme Court.
The Supreme Court’s Ruling
The Supreme Court, in a 5-4 decision, concluded that section 3 of DOMA, by defining marriage for purposes of federal law to be limited to unions between a man and woman, violated the equal protection of the laws provision of the Fifth Amendment to the Constitution.
The Court gave considerable emphasis to the historic and plenary authority of the states to define and regulate marriage:
The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens …. The definition of marriage is the foundation of the state’s broader authority to regulate the subject of domestic relations with respect to the protection of offspring, property interests, and the enforcement of marital responsibilities. The states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce [and] the Constitution delegated no authority to the government of the United States on the subject of marriage and divorce ….
Consistent with this allocation of authority, the federal government, through our history, has deferred to state-law policy decisions with respect to domestic relations …. Federal courts will not hear divorce and custody cases even if they arise in diversity because of the virtually exclusive primacy of the states in the regulation of domestic relations.
The significance of state responsibilities for the definition and regulation of marriage dates to the nation’s beginning; for when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the states. Marriage laws vary in some respects from state to state. For example, the required minimum age is 16 in Vermont, but only 13 in New Hampshire. Likewise the permissible degree of consanguinity can vary (most states permit first cousins to marry, but a handful—such as Iowa and Washington—prohibit the practice). But these rules are in every event consistent within each state.
The Court noted that New York, along with 11 other states and the District of Columbia, by statute or court ruling, have defined marriage to include same-sex couples (statutes in Minnesota and Rhode Island went into effect after the Court’s ruling). It then observed: “DOMA departs from this history and tradition of reliance on state law to define marriage ….
The Court concluded:
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the federal government …. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states ….
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal …. DOMA contrives to deprive some couples married under the laws of their state, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same state, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the state has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition ….
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the state. DOMA singles out a class of persons deemed by a state entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the state finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.
Relevance to Church Leaders
The Court’s invalidation of section 3 of DOMA means that the definition of “marriage” for purposes of federal laws, regulations, and directives includes same-sex as well as opposite-sex couples. The Court referenced “over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law.” It provided the following examples:
Eligibility for government healthcare benefits.
The Bankruptcy Code’s special protections for domestic-support obligations.
Filing a joint tax return.
Joint burials in veterans’ cemeteries.
Taxation of health benefits provided by employers to their workers’ same-sex spouses.
Denial or reduction in benefits allowed to families upon the loss of a spouse and parent under the Social Security program.
Many other federal laws now apply to same-sex couples, although in some cases this will only be true for same-sex marriages that were lawful where and when they were performed. These laws include:
Automatic treatment of spouses as beneficiaries under 403(b) and other retirement programs.
If you are the widow or widower of a person who worked long enough under Social Security, you can receive full benefits at full retirement age for survivors or reduced benefits as early as age 60, or begin receiving benefits as early as age 50 if you are disabled and the disability started before or within seven years of the worker’s death. If a widow or widower who is caring for the worker’s children receives Social Security benefits, he or she is still eligible if their disability starts before those payments end or within seven years after they end.
When a worker files for retirement benefits, the worker’s spouse may be eligible for a benefit based on the worker’s earnings. Another requirement is that the spouse must be at least age 62 or have a qualifying child in his or her care. A qualifying child is a child who is younger than age 16 or who receives Social Security disability benefits. The “spousal benefit” can be as much as half of the worker’s “primary insurance amount,” depending on the spouse’s age at retirement. If the spouse begins receiving benefits before “normal (or full) retirement age,” the spouse will receive a reduced benefit. However, if a spouse is caring for a qualifying child, the spousal benefit is not reduced. If a spouse is eligible for a retirement benefit based on his or her own earnings, and if that benefit is higher than the spousal benefit, then [the Social Security Administration] pay[s] the retirement benefit. Otherwise [the Social Security Administration] pays the spousal benefit.
While DOMA did not prevent an employer from offering health-care benefits to the same-sex spouse of an employee, it did impose discriminatory tax treatment. Under the Internal Revenue Code, the fair market value of health-care benefits for a qualified employee’s spouse who is not otherwise a dependent of the qualified employee is not subject to federal income tax, but DOMA forced both employer and employee to treat that value as taxable income when the qualified employee and his spouse were of the same sex. Even when an employer provided coverage under a “family plan,” in which the addition of a beneficiary could not add a premium cost, an employee who elected such coverage for a same-sex spouse or for the children of a same-sex spouse was taxed on the imputed fair market value of that coverage, unless the individuals covered qualified as tax dependents through independent means.
An employer may allow a married employee to reduce her taxable income by paying, on a pre-tax basis, the cost of coverage for a different-sex spouse, but not for a same-sex spouse.
A married employee may reduce his or her tax burden through pre-tax contributions to a “cafeteria” plan on behalf of a spouse, or be reimbursed on a pre-tax basis for spousal medical expenses from a health savings account or flexible savings account—but only for a different-sex spouse.
Employees will be able to get reimbursements from health flexible spending accounts and health reimbursement accounts for medical expenses of same-sex spouses.
While an employer may allow an employee to reduce his or her salary on a pre-tax basis to cover certain day-care or elder-care expenses through a dependent care assistance plan, such plans may not extend to care of children or adults who are tax dependents of a same-sex spouse.
The earned income credit, and child tax credit, often are higher for married couples.
Married couples filing joint returns are allowed to exclude up to $500,000 of the gain on the sale of a principal residence, if certain conditions are met. In the past, the exclusion of gain for same-sex couples was the same as for single persons—$250,000.
Transfers of assets from one spouse to another at death ordinarily are exempt from estate tax. In the past, this benefit was not available to same-sex couples.
Spouses of deceased employees can roll over, tax free, a qualifying distribution from a deceased spouse’s 403(b) retirement plan to another eligible retirement plan.
Permanent residents can petition to have their spouse immigrate to the United States.
Continued health care coverage under COBRA is available to spouses.
The Family and Medical Leave Act (FMLA) requires every employer that is “engaged in commerce or in any industry or activity affecting commerce that employs 50 or more employees” to grant eligible employees up to 12 workweeks of unpaid leave during any 12-month period in several situations, including the care of a spouse, son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition. At the end of the FMLA leave, workers are entitled to resume their same or an equivalent job.
Married persons filing a joint tax return often pay less taxes than if they were single. This may occur for several reasons. For example, a couple with a high-income spouse and a low-income spouse may pay less taxes because their tax bracket is determined by their combined income (rather than a higher tax bracket for the high-income person). If both spouses are high-income taxpayers, the opposite may be true. By permitting same-sex couples to marry, they may pay less taxes in some cases. Note, however, that the IRS is likely to treat same-sex couples as married only if their marriage was legal in the state where it occurred. Watch for clarification from the IRS prior to the 2013 filing season.
The tax code permits taxpayers to deduct alimony they pay to a former spouse.
Federal law provides various benefits to the spouses of veterans, although these benefits may be available to same-sex couples only if their marriage was legally valid where it occurred.
Several aspects of the Medicare program depend on marital status. Marital status generally will be determined by the laws of the state where a marriage occurred. So, a same-sex couple who were married in a state in which same-sex marriages are lawful will be treated as married for Medicare purposes.
Most employee pension plans are controlled by ERISA, which provides substantive rights to spouses—but under DOMA, only to spouses of a different sex. For example, most defined-benefit pension plans and certain defined-contribution retirement plans are required to distribute benefits in a form, such as a qualified joint and survivor annuity or qualified pre-retirement survivor annuity, that ensures that a participant’s different-sex spouse may receive a portion of the participant’s benefit absent express waiver by the participant (with spousal consent), and most retirement plans must provide different-sex spouses with special rights to the participant spouse’s benefit if the participant dies while still employed.
Church leaders should be familiar with these changes in the law brought about by the Supreme Court’s ruling striking down section 3 of DOMA as unconstitutional. This is especially true for churches that do not discriminate in hiring decisions on the basis of a person’s sexual orientation or a person’s involvement in a same-sex marriage.
Is All of DOMA Repealed?
No. The Supreme Court only invalidated section 3, which defines marriage for purposes of federal law as a union between a man and woman. Section 2 of DOMA, which was not addressed by the Court, states: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
Several members of Congress have introduced the “Respect for Marriage Act,” which would amend federal law to read: “For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.”
Examples
The following examples illustrate the effects of the Supreme Court’s DOMA ruling on churches and other religious organizations.
Example. Church A is doctrinally opposed to same-sex marriage, and its employee handbook defines homosexuality as a lifestyle incompatible with the church’s moral and biblical beliefs. Church A is located in one of the 37 states that do not recognize same-sex marriages as legally valid. A same-sex couple asks the pastor of Church A to marry them. The pastor refuses to do so based on his religious beliefs. Does the Supreme Court’s decision striking down section 3 of DOMA expose the pastor to legal liability for failing to perform a marriage ceremony for a same-sex couple? The answer is no. Nothing in the Court’s DOMA decision addresses this issue, or creates any liability for clergy for failing to perform same-sex marriages. This conclusion is reinforced by the fact that the church is located in one of the 37 states that define marriage as a union solely between a man and woman.
Example. Same facts as the previous example, but assume that the United States Supreme Court in a future ruling decides that the right of two persons to marry, regardless of gender, is a fundamental right guaranteed by the federal constitution. Such a ruling would likely invalidate every state statute and constitutional provision defining marriage solely as a union between a man and woman. But, as noted later in this article, it is highly unlikely that such a ruling will create civil liability for clergy who fail to perform such marriages.
Example. Church B is doctrinally opposed to same-sex marriage, and its employee handbook defines homosexuality as a lifestyle incompatible with the church’s moral and biblical beliefs. Church A is located in one of the 13 states that recognize same-sex marriages as legally valid. A same-sex couple asks the pastor of Church B to marry them. The pastor refuses to do so based on his religious beliefs. Does the Supreme Court’s decision striking down section 3 of DOMA expose the pastor to legal liability for failing to perform a marriage ceremony for a same-sex couple? The answer is no. Nothing in the Court’s DOMA decision addresses this issue, or creates any liability for clergy for failing to perform same-sex marriages.
Example. Church C is not doctrinally opposed to same-sex marriage, or the employment of homosexuals, and is in one of the 13 states that recognizes same-sex marriages as legally valid. One of its employees informs the pastor that she is planning on marrying a person of the same gender. When the employee marries, the church will need to treat her the same as it does any employee who is married to a person of the opposite sex. This means that church leaders should be familiar with the consequences listed in this article. As an example, the church should ask the employee to submit a new Form W-4 (withholding allowance certificate) so that the withholding of taxes will take into account the employee’s new marital status.
Example. Church D is not doctrinally opposed to same-sex marriage, or the employment of homosexuals, and is in one of the 37 states that do not recognize same-sex marriages as legally valid. One of its employees informs the pastor that she is planning on marrying another person of the same gender. Marital status for federal tax purposes generally is based on applicable state law. Since this marriage will not be recognized as legally valid under state law, none of the tax consequences summarized in this article will apply. The Supreme Court, in both of its recent rulings addressing same-sex marriages, declined to recognize marriage between persons of the same sex to be a fundamental right protected by the federal Constitution. Therefore, the legal status of same-sex marriages is, for now, a matter of state law.
Key point. The previous two examples illustrate the conflicting status of same-sex couples based on state law. Some legal analysts predict that this disparity in treatment will lead to legal challenges that ultimately will result in another Supreme Court ruling addressing the question of whether same-sex marriage is a fundamental right protected by the federal Constitution. If the Court accepts such a case, and rules that marriage of two persons regardless of gender is a right protected by the federal Constitution, then this will invalidate the seven state statutes and 30 state constitutional provisions defining marriage solely as a union between a man and woman.
Example. Church E is doctrinally opposed to same-sex marriage, and its employee handbook defines homosexuality as a lifestyle incompatible with the church’s moral and biblical beliefs. Church E is located in one of the 13 states that recognizes same-sex marriages as legally valid. One of its employees informs the pastor that she is planning on marrying a person of the same gender. The pastor informs her that a same-sex marriage violates the church’s moral and biblical teachings, and would result in her dismissal. As a result, there would be no tax consequences for the church to consider. The legal authority of religious employers to discriminate against employees based on sexual orientation is not addressed in this article. See § 8-21.2 in Richard Hammar’s four-volume series, Pastor, Church & Law (4th ed.) or in the “Library” on ChurchLawAndTax.com for a discussion of this issue.
Example. Church F is doctrinally opposed to same-sex marriage, and its employee handbook defines homosexuality as a lifestyle incompatible with the church’s moral and biblical beliefs. Church F is located in one of the 37 states that do not recognize same-sex marriages as legally valid. One of its employees informs the pastor that she is planning on marrying a person of the same gender. The pastor informs her that a same-sex marriage violates the church’s moral and biblical teachings, and would result in her dismissal. As a result, there would be no tax consequences for the church to consider. The legal authority of religious employers to discriminate against employees based on sexual orientation is not addressed in this article. See § 8-21.2 in Richard Hammar’s four-volume series, Pastor, Church & Law (4th ed.) or in the “Library” on ChurchLawAndTax.com for a discussion of this issue.
The “Proposition 8” Case
Hollingsworth v. Perry, 2013 WL 3196927 (2013)
In 2008, the California Supreme Court ruled that limiting the official designation of marriage to opposite-sex couples violated the equal protection clause of the California Constitution. In re Marriage Cases, 76 Cal.Rptr.3d 683 (Cal. 2008). The Court concluded that the California Constitution further guarantees same-sex couples “all of the constitutionally based incidents of marriage,” including the right to have that marriage “officially recognized” as such by the state.
The California Supreme Court, in its 2008 ruling, clarified that its ruling would not affect clergy or churches:
Affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.
Later that year, California voters passed a ballot initiative known as Proposition 8 that effectively overruled the decision of the state supreme court recognizing a legal right under the state constitution for same-sex couples to marry. The proposition amended the California Constitution to provide that “only marriage between a man and a woman is valid or recognized in California.”
Two same-sex couples who wished to marry filed suit in federal district court in San Francisco, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Federal Constitution. The complaint named as defendants California’s Governor, attorney general, and various other state and local officials responsible for enforcing California’s marriage laws. Those officials refused to defend the law, even though it had been approved by the voters of the state in a statewide ballot initiative. Without a party to defend Proposition 8, the court allowed the official proponents of Proposition 8 to intervene and defend it (the “petitioners”). After a 12-day bench trial, the federal district court declared Proposition 8 unconstitutional, and permanently enjoined the defendants from enforcing the law. Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.C. Cal. 2010).
The court responded to the concern that pastors and churches now would have to perform marriages contrary to their religious beliefs by noting:
Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law ….
Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.
The defendant state officials elected not to appeal the district court decision, so the petitioners did. The Ninth Circuit Court of Appeals affirmed the district court ruling. Perry v. Brown 671 F.3d 1052 (9th Cir. 2012). The appeals court, responding to the concern of many clergy and churches that they would be required to perform marriages in violation of their religious beliefs, observed:
There is no dispute that even before Proposition 8, “no religion [was] required to change its religious policies or practices with regard to same-sex couples, and no religious officiant [was] required to solemnize a marriage in contravention of his or her religious beliefs” [quoting the district court’s opinion]. Rather, the religious-liberty interest that Proposition 8 supposedly promoted was to decrease the likelihood that religious organizations would be penalized, under California’s antidiscrimination laws and other government policies concerning sexual orientation, for refusing to provide services to families headed by same-sex spouses. But Proposition 8 did nothing to affect those laws. To the extent that California’s antidiscrimination laws apply to various activities of religious organizations, their protections apply in the same way as before …. This argument is in no way addressed by Proposition 8 and could not have been the reason for Proposition 8.
The United States Supreme Court agreed to review the appeals court’s ruling.
The Supreme Court’s Decision
The Court ruled that the petitioners—the original proponents of Proposition 8 who were allowed to defend its legality after the governor and other state officials refused to do so—lacked “standing” to defend it. Standing is a technical requirement in any federal court lawsuit, and derives from Article III of the United States Constitution that confines the judicial power of the federal courts to actual “cases” or “controversies.” The Court explained:
One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. This requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision. In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Article III’s requirements.
The Court conceded that the governor and state officials had standing to defend the constitutionality of Proposition 8, but they declined to do so and no one else had standing:
To have standing, a litigant must seek relief for an injury that affects him in a “personal and individual way.” He must possess a “direct stake in the outcome” of the case. Here, however, petitioners had no “direct stake” in the outcome of their appeal. Their only interest in having the district court order reversed was to vindicate the constitutional validity of a generally applicable California law. We have repeatedly held that such a “generalized grievance,” no matter how sincere, is insufficient to confer standing. A litigant “raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.
But once Proposition 8 was approved by the voters, the measure became “a duly enacted constitutional amendment or statute.” Petitioners have no role—special or otherwise—in the enforcement of Proposition 8. They therefore have no “personal stake” in defending its enforcement that is distinguishable from the general interest of every citizen of California.
Article III standing is not to be placed in the hands of “concerned bystanders,” who will use it simply as a ‘vehicle for the vindication of value interests.’ No matter how deeply committed petitioners may be to upholding Proposition 8 or how zealous their advocacy, that is not a “particularized” interest sufficient to create a case or controversy under Article III.
So, the Court left Proposition 8 undefended. The governor and state officials refused to defend it, even though it was an amendment to the state constitution duly approved by the voters of California, and the proponents of Proposition 8 lacked standing to do so. The takeaway point seems to be that those opposing state statutes or constitutional provisions defining marriage as a union between a man and woman need only challenge the constitutionality of the provision in federal court. If the state governor refuses to defend it, no one else will have standing to do so and therefore the challenged statute or constitutional provision will be invalidated by default, just like Proposition 8.
The Supreme Court, in both the DOMA and Proposition 8 rulings, declined to rule that the right of same-sex couples to marry is a right protected by the federal constitution. The fact that same-sex couples will now be treated differently under federal laws based on the validity of same-sex marriages under state law will inevitably and quickly result in further litigation. Eventually, and probably sooner than later, the Supreme Court will decide if same-sex marriage is a fundamental right guaranteed by the federal constitution.
Will ministers be required to perform same-sex marriages?
Many ministers who are opposed on religious grounds to same-sex marriages are voicing concern over their potential liability for not performing such marriages. Is this fear well-founded, or exaggerated? Consider the following:
1. The Supreme Court’s two same-sex marriage rulings
There is nothing in the Supreme Court’s two recent rulings involving same-sex marriages (the DOMA and Proposition 8 cases summarized above) remotely suggesting that ministers who refuse to perform same-sex marriages on the basis of their religious beliefs will be subject to civil liability for not doing so.
2. Continuing validity of laws in 37 states defining marriage as a union between a man and woman
The Supreme Court, in the DOMA and Proposition 8 rulings, declined to recognize same-sex marriage as a fundamental right guaranteed by the federal constitution. As a result, the statutes or constitutional provisions in 37 states defining marriage as a union between a man and woman were left intact.
3. Prior Supreme Court rulings
Several decisions of the United States Supreme Court strongly suggest that the First Amendment guaranty of religious freedom permits clergy to perform marriages consistently with their religious beliefs. Consider the following:
But it is a very different thing where a subject-matter of dispute, strictly and purely ecclesiastical in its character—a matter over which the civil courts exercise no jurisdiction—a matter which concerns theological controversy, church discipline, ecclesiastical government or the conformity of the members of the church to the standard of morals required of them—becomes the subject of its action. It may be said here, also, that no jurisdiction has been conferred on the tribunal to try the particular case before it, or that, in its judgment, it exceeds the powers conferred upon it. Watson v. Jones, 80 U.S. 679, 733 (1871).
Because the appointment is a canonical act, it is the function of the church authorities to determine what the essential qualifications of a [clergyman] are and whether the candidate possesses them. In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties … made them so by contract or otherwise. Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16-17 (1928).
Legislation that regulates church administration, the operation of the churches, the appointment of clergy … prohibits the free exercise of religion …. Watson v. Jones … radiates, however, a spirit of freedom for religious organizations, and independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 105-106, 116 (1952).
First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969).
The fallacy fatal to the judgment of the Illinois Supreme Court is that it … impermissibly substitutes its own inquiry into church polity …. To permit civil courts to probe deeply enough into the allocation of power within a hierarchical church so as to decide religious law governing church polity would violate the First Amendment …. For where resolution of disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them in their application to the religious issues of doctrine of policy before them …. In short, the First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government …. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-09, 724 (1976).
4. Other grounds for not performing marriages have never been questioned
Clergy routinely decline to perform some marriages based on their religious beliefs. To illustrate, some ministers refuse to perform some or all of the following marriages:
Marriages between more than two persons (bigamy and polygamy).
Marriages between a parent and child (incest).
Marriages between siblings (incest).
Marriages between first cousins (even though this is now allowed in at least 21 states).
Marriages in which one or both spouses is under age.
Marriages in which one or both spouses was previously married and divorced.
Marriages in which one or both spouses is not a member of the pastor’s faith (i.e., “Do not be yoked together with unbelievers. For what do righteousness and wickedness have in common? Or what fellowship can light have with darkness?”) 2 Cor. 6:14 (NIV).
Marriages in which the pastor believes one or both spouses, while of legal age, are too spiritually immature to enter into so important a relationship.
In the 237-year history of the United States, no minister has ever been found liable for refusing to perform a marriage on these or similar grounds. A minister’s refusal to marry a same-sex couple in contravention of his or her religious beliefs should be viewed in the same light. If clergy can be found liable for refusing to perform same-sex marriages on religious grounds, then they are exposed to liability for refusing to perform any marriages as a result of their religious beliefs, including those described above.
5. State laws recognizing same-sex marriages contain broad clergy exemptions
Same-sex marriages are recognized as legally valid in 13 states and the District of Columbia, either by statute or court ruling. The states recognizing same-sex marriages are CA, CT, DE, IA, ME, MA, MD, MN, NH, NY, RI, VT, and WA. In each of these states, there is an explicit and unequivocal recognition of the right of clergy to marry, or not marry, any couple on the basis of their religious beliefs. The relevant provisions in the statutes and court rulings of all 13 states, and the District of Columbia, are summarized below.
(1) California
The California Supreme Court, in its 2008 ruling recognizing a constitutional right of same-sex couples to marry, declared:
Affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.
This ruling prompted a statewide referendum (Proposition 8) in which the citizens of California voted to amend the state constitution to define marriage as a union between a man and woman. In 2010, a federal district court judge in San Francisco ruled that Proposition 8 violated the due process and equal protection guarantees of the United States Constitution. The judge responded to the concern that pastors would now have to perform marriages contrary to their religious beliefs by noting:
Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law ….
Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.
This case was appealed to a federal appeals court, which affirmed the district court’s ruling. The United States Supreme Court vacated the appeals court ruling on technical grounds, which had the effect of leaving the district court ruling intact.
(2) Connecticut
The Connecticut Supreme Court in 2008 ruled that same-sex couples have a constitutional right under the state constitution to marry. The court observed:
Religious autonomy is not threatened by recognizing the right of same sex couples to marry civilly. Religious freedom will not be jeopardized by the marriage of same sex couples because religious organizations that oppose same sex marriage as irreconcilable with their beliefs will not be required to perform same sex marriages or otherwise to condone same sex marriage or relations. Because, however, marriage is a state sanctioned and state regulated institution, religious objections to same sex marriage cannot play a role in our determination of whether constitutional principles of equal protection mandate same sex marriage.
The legislature added the following section to the state marriage law following the ruling by the state supreme court:
(a) No member of the clergy authorized to join persons in marriage … shall be required to solemnize any marriage in violation of his or her right to the free exercise of religion guaranteed by the first amendment to the United States Constitution or section 3 of article first of the Constitution of the state.
(b) No church or qualified church-controlled organization, as defined in 26 USC 3121, shall be required to participate in a ceremony solemnizing a marriage in violation of the religious beliefs of that church or qualified church-controlled organization. Conn. Stat. 46b-22b.
(3) Delaware
The state legislature adopted the “Civil Marriage Equality and Religious Freedom Act” in 2013, which expands the definition of marriage to include same-sex couples. The Act also added the following section to the marriage statute:
Other than as provided in this subsection, nothing in this section shall be construed to require any person (including any clergyperson or minister of any religion) authorized to solemnize a marriage to solemnize any marriage, and no such authorized person who fails or refuses for any reason to solemnize a marriage shall be subject to any fine or other penalty for such failure or refusal. Notwithstanding the preceding sentence, a clerk of the peace who issues a marriage license, or a deputy thereof, shall be required to perform a solemnization of such marriage if requested by the applicants for such license. 13 Del. Code 106(e).
(4) District of Columbia
Same-sex marriage has been recognized in the District of Columbia since enactment of the “Religious Freedom And Civil Marriage Equality Amendment Act.” The Act amended the District of Columbia Code by adding the following provision:
(a) For the purposes of this section, the term:
(1) “Religious” includes or pertains to a belief in a theological doctrine, a belief in and worship of a divine ruling power, a recognition of a supernatural power controlling man’s destiny, or a devotion to some principle, strict fidelity or faithfulness, conscientiousness, pious affection, or attachment ….
(c) No priest, imam, rabbi, minister, or other official of any religious society who is authorized to solemnize or celebrate marriages shall be required to solemnize or celebrate any marriage.
(d) Each religious society has exclusive control over its own theological doctrine, teachings, and beliefs regarding who may marry within that particular religious society’s faith.
(e)(1) Notwithstanding any other provision of law, a religious society, or a nonprofit organization that is operated, supervised, or controlled by or in conjunction with a religious society, shall not be required to provide services, accommodations, facilities, or goods for a purpose related to the solemnization or celebration of a marriage, or the promotion of marriage through religious programs, counseling, courses, or retreats, that is in violation of the religious society’s beliefs.
(2) A refusal to provide services, accommodations, facilities, or goods in accordance with this subsection shall not create any civil claim or cause of action, or result in a District action to penalize or withhold benefits from the religious society or nonprofit organization that is operated, supervised, or controlled by or in conjunction with a religious society.
(5) Iowa
The Iowa Supreme Court in 2009 ruled that same-sex couples have a constitutional right under the state constitution to marry. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). The court observed:
It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation. The belief that the “sanctity of marriage” would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained—even fundamental—religious belief ….
We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman. This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation. This proposition is the essence of the separation of church and state ….
In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—religious or otherwise—by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.”
(6) Maine
In 2009 the Maine legislature made same-sex marriages legal. However, a public referendum launched on the day the legislation took effect was successful and resulted in a repeal of the legislation. Another initiative in 2012 titled “An Act to Allow Marriage Licenses for Same-Sex Couples and Protect Religious Freedom” put the following question on a statewide ballot: “Do you want to allow the State of Maine to issue marriage licenses to same-sex couples?” This initiative succeeded by a vote of 53 percent to 47 percent, and the new law took effect at the end of 2012. It contains the following exemption:
This chapter does not require any member of the clergy to perform or any church, religious denomination or other religious institution to host any marriage in violation of the religious beliefs of that member of the clergy, church, religious denomination or other religious institution. The refusal to perform or host a marriage under this subsection cannot be the basis for a lawsuit or liability and does not affect the tax-exempt status of the church, religious denomination or other religious institution. 19-A Me. Stats. § 655.
(7) Massachusetts
In ruling that same-sex couples have a constitutional right under the state constitution to marry, the Massachusetts Supreme Court observed:
We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution. No religious ceremony has ever been required to validate a Massachusetts marriage ….
Our decision in no way limits the rights of individuals to refuse to marry persons of the same sex for religious or any other reasons. It in no way limits the personal freedom to disapprove of, or to encourage others to disapprove of, same-sex marriage. Our concern, rather, is whether historical, cultural, religious, or other reasons permit the State to impose limits on personal beliefs concerning whom a person should marry.” Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003).
(8) Maryland
The Maryland legislature passed the “Civil Marriage Protection Act” in 2012, legalizing same-sex marriage. A statewide referendum conducted in 2012 asked voters to approve or reject the new law. The referendum contained the following question:
Establishes that Maryland’s civil marriage laws allow gay and lesbian couples to obtain a civil marriage license, provided they are not otherwise prohibited from marrying; protects clergy from having to perform any particular marriage ceremony in violation of their religious beliefs; affirms that each religious faith has exclusive control over its own theological doctrine regarding who may marry within that faith; and provides that religious organizations and certain related entities are not required to provide goods, services, or benefits to an individual related to the celebration or promotion of marriage in violation of their religious beliefs.
The voters approved the same-sex marriage law by a vote of 52 percent. The new statute contains the following provision:
An official of a religious order or body authorized by the rules and customs of that order or body to perform a marriage ceremony may not be required to solemnize or officiate any particular marriage or religious rite of any marriage in violation of the right to free exercise of religion guaranteed by the First Amendment to the United States Constitution and by the Maryland Constitution and Maryland Declaration of Rights. Each religious organization, association, or society has exclusive control over its own theological doctrine, policy teachings, and beliefs regarding who may marry within that faith. An official of a religious order or body authorized to join individuals in marriage under § 2-406(a)(2)(i) of the Family Law Article and who fails or refuses to join individuals in marriage is not subject to any fine or other penalty for the failure or refusal.
(9) Minnesota
The citizens of Minnesota turned down an attempt in 2013 to amend the state constitution to define marriage as a union between a man and woman. As a result, same-sex marriages became legal in August of 2013. The new law provides:
Subd. 2. Refusal to solemnize; protection of religious doctrine. Each religious organization, association, or society has exclusive control over its own theological doctrine, policy, teachings, and beliefs regarding who may marry within that faith. A licensed or ordained member of the clergy or other person authorized by section 517.04 to solemnize a civil marriage is not subject to any fine, penalty, or civil liability for failing or refusing to solemnize a civil marriage for any reason.
Subd. 3. Refusal to participate or support solemnization; protection of religious belief. (a) Except for secular business activities engaged in by a religious association, religious corporation, or religious society, the conduct of which is unrelated to the religious and educational purposes for which it is organized, no religious association, religious corporation, or religious society shall be required to provide goods or services at the solemnization or celebration of any civil marriage or be subject to civil liability or any action by the state that penalizes, fines, or withholds any benefit to the religious association, religious corporation, or religious society under the laws of this state, including, but not limited to, laws regarding tax exempt status, for failing or refusing to provide goods or services at the solemnization or celebration of any civil marriage, if providing such goods or services would cause the religious association, religious corporation, or religious society to violate their sincerely held religious beliefs.
(b) The exception in paragraph (a) applies to employees, agents, and volunteers acting within the capacity of their employment or responsibilities with a religious association, religious corporation, or religious society. Minn. Stats. § 517.09.
(10) New Hampshire
In 2010 the New Hampshire legislature enacted “An Act Affirming Religious Freedom Protections with Regard to Marriage.” The Act provides:
Each religious organization, association, or society has exclusive control over its own religious doctrine, policy, teachings, and beliefs regarding who may marry within their faith.
I. Members of the clergy … or other persons otherwise authorized under law to solemnize a marriage shall not be obligated or otherwise required by law to officiate at any particular civil marriage or religious rite of marriage in violation of their right to free exercise of religion protected by the First Amendment to the United States Constitution or by part I, article 5 of the New Hampshire constitution.
II. No religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, shall be required to participate in a ceremony solemnizing marriage in violation of the religious beliefs of such organization, association, or society.
III. Notwithstanding any other provision of law, a religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual if such request for such services, accommodations, advantages, facilities, goods, or privileges is related to the solemnization of a marriage, the celebration of a marriage, or the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals, and such solemnization, celebration, or promotion of marriage is in violation of his or her religious beliefs and faith. Any refusal to provide services, accommodations, advantages, facilities, goods, or privileges in accordance with this section shall not create any civil claim or cause of action or result in any state action to penalize or withhold benefits from such religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society.
IV. The marriage laws of this state shall not be construed to affect the ability of a fraternal benefit society to determine the admission of members pursuant to RSA 418:5, and shall not require a fraternal benefit society that has been established and is operating for charitable or educational purposes and which is operated, supervised, or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the fraternal benefit society’s free exercise of religion as guaranteed by the First Amendment of the United States Constitution and part I, section 1, part 5 of the New Hampshire constitution.
V. Nothing in this chapter shall be deemed or construed to limit the protections and exemptions provided to religious organizations under RSA 354-A:18. N.H. Stats. 457:37.
(11) New York
The New York legislature enacted the “Marriage Equality Act in 2011,” which recognized same-sex marriages. The Act contains the following section: “A refusal by a clergyman or minister … to solemnize any marriage under this subdivision shall not create a civil claim or cause of action or result in any state or local government action to penalize, withhold benefits or discriminate against such clergyman or minister.” N.Y. Domestic Rel. Law § 11.
In addition, New York law was amended in 2011 to include the following protection:
Notwithstanding any state, local or municipal law, rule, regulation, ordinance, or other provision of law to the contrary, a religious entity … or a not-for-profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof, being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation as described in this subdivision, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any such refusal to provide services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action or result in any state or local government action to penalize, withhold benefits, or discriminate against such religious corporation, benevolent order, a not-for-profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation. N.Y. Domestic Rel. Law § 10-b.
(12) Rhode Island
Same-sex marriages have been recognized in Rhode Island since August of 2013. The state legislature also enacted the following religious liberty provision:
(a) Consistent with the guarantees of freedom of religion set forth by both the First Amendment to the United States constitution and article I, section 3 of the Rhode Island constitution, each religious institution has exclusive control over its own religious doctrine, policy, and teachings regarding who may marry within their faith, and on what terms, as long as such policies are consistent with sections 15-1-2, 15-1-3, 15-1-4 and 15-1-5. No court or other state or local governmental body, entity, agency or commission shall compel, prevent, or interfere in any way with any religious institution’s decisions about marriage eligibility within that particular faith’s tradition.
(b) Consistent with the guarantees of freedom of religion set forth by both the first amendment to the United States constitution and article I, section 3 of the Rhode Island constitution, no regularly licensed or ordained clergyperson, minister, elder, priest, imam, rabbi, or similar official of any church or religious denomination as described and authorized in sections 15-3-5 and 15-3-6 of the general laws to officiate at a civil marriage, is required to solemnize any marriage. A regularly licensed or ordained clergyperson, minister, elder, priest, imam, rabbi, or similar official of any church or religious denomination shall be immune from any civil claim or cause of action based on a refusal to solemnize any marriage under this chapter. No state agency or local government may base a decision to penalize, withhold benefits from, or refuse to contract with any church or religious denomination on the refusal of a person associated with such church or religious denomination to solemnize a marriage under this chapter. R.I. Stats. 15-3-6.1.
(13) Vermont
Same-sex marriages have been recognized in Vermont since 2009 with the enactment of “An Act to Protect Religious Freedom and Recognize Equality in Civil Marriage.” The Act contains the following protection of religious liberty:
(a) Marriages may be solemnized by a … member of the clergy residing in this state and ordained or licensed, or otherwise regularly authorized thereunto by the published laws or discipline of the general conference, convention, or other authority of his or her faith or denomination, or by such a clergy person residing in an adjoining state or country, whose parish, church, temple, mosque, or other religious organization lies wholly or in part in this state, or by a member of the clergy residing in some other state of the United States or in the Dominion of Canada, provided he or she has first secured from the probate division of the superior court in the unit within which the marriage is to be solemnized a special authorization, authorizing him or her to certify the marriage if the probate judge determines that the circumstances make the special authorization desirable ….
(b) This section does not require a member of the clergy authorized to solemnize a marriage as set forth in subsection (a) of this section … to solemnize any marriage, and any refusal to do so shall not create any civil claim or cause of action. 18 Vt. Stats. §5144.
The civil marriage laws shall not be construed to affect the ability of a society to determine the admission of its members as provided in section 4464 of this title, or to determine the scope of beneficiaries in accordance with section 4477 of this title, and shall not require a society that has been established and is operating for charitable and educational purposes and which is operated, supervised, or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the society’s free exercise of religion, as guaranteed by the First Amendment to the Constitution of United States or by Chapter I, Article 3 of the Constitution of the State of Vermont. 8 Vt. Stats. 4501.
(14) Washington
Same-sex marriages have been recognized in Washington since 2012. However, the Washington legislature enacted the following provisions in order to protect religious liberty:
(4) No regularly licensed or ordained minister or any priest, imam, rabbi, or similar official of any religious organization is required to solemnize or recognize any marriage. A regularly licensed or ordained minister or priest, imam, rabbi, or similar official of any religious organization shall be immune from any civil claim or cause of action based on a refusal to solemnize or recognize any marriage under this section. No state agency or local government may base a decision to penalize, withhold benefits from, or refuse to contract with any religious organization on the refusal of a person associated with such religious organization to solemnize or recognize a marriage under this section.
(5) No religious organization is required to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage.
(6) A religious organization shall be immune from any civil claim or cause of action, including a claim pursuant to chapter 49.60 RCW, based on its refusal to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage.
(7) For purposes of this section:
(a) “Recognize” means to provide religious-based services that:
(i) Are delivered by a religious organization, or by an individual who is managed, supervised, or directed by a religious organization; and
(ii) Are designed for married couples or couples engaged to marry and are directly related to solemnizing, celebrating, strengthening, or promoting a marriage, such as religious counseling programs, courses, retreats, and workshops; and
(b) “Religious organization” includes, but is not limited to, churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, and other entities whose principal purpose is the study, practice, or advancement of religion. Wash. Code §26.04.010.
Another statute contains the following additional protection of religious liberty:
(5) No state agency or local government may base a decision to penalize, withhold benefits from, license, or refuse to contract with any religious organization based on the opposition to or refusal to provide accommodations, facilities, advantages, privileges, services, or goods related to the solemnization or celebration of a marriage.
(6) No religiously affiliated educational institution shall be required to provide accommodations, facilities, advantages, privileges, service, or goods related to the solemnization or celebration of a marriage, including a use of any campus chapel or church. A religiously affiliated educational institution shall be immune from a civil claim or cause of action, including a claim pursuant to chapter 49.60 RCW, based on its refusal to provide accommodations, facilities, advantages, privileges, service, or goods related to the solemnization or celebration of a marriage under this subsection shall be immune for civil claim or cause of action, including a claim pursuant to chapter 49.60 RCW. Wash. Code §26.04.020.
Presidential Statement
President Obama made the following announcement following the Supreme Court’s two rulings addressing same-sex marriages: “On an issue as sensitive as this, knowing that Americans hold a wide range of views based on deeply held beliefs, maintaining our nation’s commitment to religious freedom is also vital. How religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decision – which applies only to civil marriages – changes that.”
6. In a unanimous decision in 2012, the United States Supreme Court affirmed the so-called “ministerial exception” to employment discrimination laws.
E.E.O.C. v. Hosanna-Tabor Church and School, 132 S.Ct. 694 (2012). The Court concluded:
We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.
This exception, which is rooted in the First Amendment’s religion clauses, prevents the civil courts from resolving employment discrimination disputes between churches and clergy. This will protect the decisions of churches and religious denominations regarding the selection, ordination, and discipline of clergy on the basis of sexual orientation or a same-sex marriage.
Can a church prohibit its facilities to be used for a same-sex wedding?
The previous section surveyed the “religious liberty” provisions in the laws and court rulings of the 13 states and District of Columbia that presently recognize same-sex marriages. While clergy are explicitly shielded from liability for refusing to perform marriages, many of these state laws also clarify that churches are not subject to civil liability for refusing to allow their facilities to be used for same-sex marriages.
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