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Church Risk Management and Sexual Orientation


In the wake of new state laws and statutes allowing same-sex marriage, some pastors wonder if their refusal to perform same-sex marriage ceremonies puts them in a liable position. Add to that a refusal to hire employees based on sexual orientation, and some may feel like a large target has been painted on their church—making them vulnerable to a lawsuit. Not to worry. This article will help put those fears to rest.

According to Dr. Richard Hammar, legal counsel for the Assemblies of God, no current state law or statute sanctioning same-sex marriage impinges on religious freedom. At the present time, a pastor has not been held liable for refusing to marry a same-sex couple or host their wedding at the church.

Here’s how the states currently stand:

Twelve states and Washington D.C. have legally permitted same-sex marriage or soon will. These states are Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington. Four state supreme courts have found same-sex marriage to be constitutionally mandated under their state constitutions. These include California, Connecticut, Iowa, and Massachusetts.

On the other side of the divide, six states have enacted legislation that defines marriage as between a man and woman (prohibiting same-sex marriage). Furthermore, in 30 states the voters have enacted state constitutional amendments defining marriage as a union between a man and woman, implicitly rejecting same-sex marriage.

In addition, the Federal Defense of Marriage Act (1996) states that in terms of federal law, marriage is defined as a union between a man and a woman. Eight federal courts have ruled that this statute is unconstitutional. Five of those are currently being appealed to the U.S. Supreme Court. During this term, perhaps as soon as summer 2013, they should render a ruling on those five cases, as well as the legality of same-sex marriage in general.

In California, the Ninth Circuit Court of Appeals ruled last year that Proposition 8, a public referendum rejecting the state's 2008 mandate of same-sex marriage, was unconstitutional. That case has been appealed to the Supreme Court and is expected to be resolved in the summer of 2013. The thing to note from the Ninth Circuit U.S. Court of Appeal ruling is that it was based on the Equal Protection Clause of the United States Constitution. The U.S. Constitution trumps all state laws and all state constitutional provisions. This summer, the Supreme Court may simply rule that same-sex marriage is a state matter, not a federal one. However, if the Supreme Court agrees with the Ninth Circuit Court of Appeals, saying that the federal constitutional guarantee of equal protection of the laws mandates that same-sex couples be given the same right to marry as heterosexual couples, all 30 state constitutional provisions, all six state statutes, will be rendered unconstitutional.

What would such a ruling mean for my church?

As it stands, the only state rulings mandating same-sex marriage each articulate that even though those courts recognize such marriage to be constitutionally mandated, it does not mean clergy are required to perform them or that churches are required to host them. No court has said to the contrary.

Even if the Supreme Court rules in favor of same-sex marriage, it won’t mean clergy are going to be exposed to any liability, civil or criminal, for following their conscience and their religious beliefs. If the Supreme Court doesn’t duck the issue altogether, it will do what all the state courts have done without exception—give a broad expression to the religious freedom of both churches and clergy to marry or not marry based on their religious convictions.

Three conclusions:

  1. No minister is required to perform a same-sex or any other marriage contrary to his or her religious beliefs. Anything you’ve heard to the contrary is false.
  2. No church is required to allow its facilities to be used for same-sex marriages in violation of its religious beliefs.
  3. You do not need to change your bylaws to prohibit same-sex marriage.

Watch the full Risk Mgmt LIVE episode on sexual orientation.

Employment discrimination based on sexual orientation

At this point, no federal law prohibits employment discrimination based on sexual orientation by private employers.

Title 7 of the Civil Rights Act of 1964 prohibits employers with 15 or more employees from discriminating on the base of race, color, national origin, gender, or religion. The word “gender” has never been interpreted to mean “sexual orientation.” Last year the U.S. Equal Employment Opportunity Commission (EEOC) did define it to mean sexual orientation, but only with respect to federal employees, not private employers.

The Employment Non-Discrimination Act (ENDA), which has been submitted to most sessions of Congress for the past 20 years would ban discrimination by private employers based on sexual orientation or sexual identity. However, this law has never passed. In addition, it contains a very broad exemption, which says the act would not apply to any corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of Title 7 of the Civil Rights Act of 1964. Bottom line: Even if ENDA is ever enacted, it won’t apply to church employers.

Twenty-one states have enacted statutes prohibiting employment discrimination by private employers on the basis of sexual orientation. In addition to banning discrimination on the basis of sexual orientation, many of these state laws also ban it in public accommodations and housing. Some laws ban gender identity discrimination. However, they all have broad religious exemptions.

The Ministerial Exception

The United States Supreme Court recognized the Ministerial Exception unanimously last year. It states that civil courts are barred by the First Amendment guarantee of religious freedom from intervening or interfering with employment disputes between clergy and churches, ministers and churches. For example, a minister could claim, “I wasn’t hired by this church because I’m gay” or “I was terminated because I revealed my sexual identity,” but no federal court will hear such a case because of the Ministerial Exception.

How can my church protect itself as an employer?

Employment practices are not covered under a standard liability policy. Many churches have found themselves in the middle of an employment dispute only to realize that their liability insurance does not cover employment. Even if you only have one or two employees, it is good at least to have minimal coverage and is very inexpensive. Two things are recommended:

  1. Purchase a Directors and Officers Liability policy.
  2. Add an endorsement for Employment Practices Liability to the policy.

For more information about church liability policies, call AGFinancial Insurance Solutions at 866.662.8210.

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