In light of the two recent Supreme Court rulings on same-sex marriage, questions have arisen as to the impact for churches and pastors. For instance, some are wondering if they will be exposed to liability for refusing to marry a same-sex couple if their church happens to be located in one of the 13 states currently allowing such marriages. Those states include California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington. Washington D.C. also permits same-sex marriage. While the short answer to the liability question is no, let’s take a closer look at each ruling to understand why.
Ruling #1: DOMA
The Defense of Marriage Act (DOMA) was enacted by Congress in 1996. Section three of this statute defined marriage as a union between a man and woman for federal purposes. The Supreme Court ruled that this provision is unconstitutional for two reasons:
- It invaded the province of state and local government to make regulations about marriage.
- It violated article five of the Constitution, which incorporates the concept of equal protection of the laws.
It’s important to point out that the Court did not issue a sweeping endorsement of same-sex marriage in all 50 states. Rather, in the 13 states where same-sex marriage is legal, DOMA is now declared unconstitutional and marriage is defined to include both opposite-sex and same-sex couples. This ruling affects 1,136 federal provisions, including the following:
- 403(b) beneficiaries
- Social Security benefits for spouses
- Social Security survivors benefits for spouses
- Tax-free status of employer-provided health care for spouses and dependents
- Pre-tax SRA contributions to cafeteria plans for spouses
- Flexible spending accounts and health savings accounts for spouses’ expenses
- Sales of principle residences
- Joint tax returns
- Estate taxes—transfers at death are exempt from tax
The ruling will create a disparity in the way same-sex couples are treated depending on state law because in the 37 states where marriage is still defined as a union between a man and woman, DOMA still applies. Some legal analysts predict that this disparity in treatment will lead to legal challenges that ultimately result in another Supreme Court ruling addressing the question of whether same-sex marriage is a fundamental right protected under the federal Constitution.
What’s the potential impact on ministers and churches?
For many churches, the tax status of medical insurance paid by the employer may be one of the biggest impacts of this ruling in the 13 states. For churches located in one of the 37 states which doesn’t recognize same-sex marriage, the new federal benefits will not be available to same-sex couples. This is where the disparity created by this ruling comes into play. If a church is opposed to same-sex marriage and is located in one of these 13 states, the church will not be exposed to liability for refusing to hire based on sexual orientation, due to the broad religious exemptions in all state laws regarding employment discrimination.
No matter where they’re located, ministers will not be exposed to legal liability for refusing to marry a same-sex couple.
Ruling #2: Proposition 8
Proposition 8 in the state of California was started in 2008 as a voter initiative to decide that marriage should be defined as between a man and woman. It was deemed to be unconstitutional and invalid by a district court at the state level. The proponents continued to appeal the ruling all the way to the Supreme Court. At that point, the Court could have made a sweeping ruling permitting all same-sex couples to marry, which would have essentially swept away the laws and constitutional provision surrounding same-sex marriage in 37 states. Instead, they dismissed the appeal on a technicality, saying the proponents did not have standing to make the appeal. This decision had the effect of reinstating the original district court ruling that Proposition 8 is indeed unconstitutional—same-sex marriage remains legal in California.
What’s the potential impact on ministers and churches?
This ruling has nothing to do with religious freedom for ministers and churches in deciding whom they will marry or not marry. In fact, the language of the district court ruling includes the following religious exemption: “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 officiate will be required to solemnize a marriage in contravention of his or her religious beliefs.”
If you happen to be located in California or one of the other 12 states, which allow same-sex marriage, keep these points in mind:
- There are previous Supreme Court rulings in different cases, which imply the protection of ministers. This suggests a strong probability that the courts will recognize the authority of the First Amendment, which protects religious freedom.
- No court in the 237-year history of our country has ever found a minister liable for refusing to marry anyone, for any reason based on his or her religious or doctrinal views.
- The laws of each of the 13 states where same-sex marriage is legal recognize the right of clergy to marry or not marry based on their religious views.
From both rulings, we can draw four reassuring conclusions:
- No minister is required to perform a same-sex (or any other) marriage contrary to his or her religious beliefs.
- No church is required to allow its facilities to be used for same-sex marriages in violation of its religious beliefs.
- No church bylaw amendments are necessary at this time.
- Marriage for purposes of federal law includes same-sex couples in the 13 states that recognize same-sex marriage. The other 37 states, which don’t recognize same-sex marriage, remain unaffected.
For more information about managing church risk and reducing liability, call AG Financial Insurance Solutions at 866.662.8210.