Are religious liberties jeopardized by recent Supreme Court decisions on same-sex marriage?

by Sarah Pack

The United States Supreme Court recently decided two major cases concerning the issue of same-sex marriage. While the Court declined to reach the question of whether it is constitutional for a state to ban marriage between same-sex couples in California’s Proposition 8 case, it did find unconstitutional the federal Defense of Marriage Act (DOMA), which prohibited the federal government from recognizing same-sex marriages and thus prevented the extension of federal benefits to such spouses.

Proponents of same-sex marriage are undertaking a state-by-state campaign to lobby state legislatures to take up the issue of amending their state laws in favor of same-sex marriage ultimately seeking a national Supreme Court decision providing for the right to marry a person of the same sex within the next five years. As of now, thirteen states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington) and the District of Columbia have either legislatively or judicially extended the right to marry to same-sex couples. The issue is expected to arise in state legislatures or on voter ballots in Illinois, New Jersey, Hawaii, and Oregon over the next two years. As more states grapple with whether or not to recognize same-sex marriage, important questions concerning religious liberties have come to the foreground. So what does all of this mean for your church or para-church organization? If same-sex marriage is legal in your state, will your minister or pastor be forced to either perform or accommodate marriage ceremonies for same-sex couples or risk your church’s tax exempt status? In short, the answer is no.

Each state that has legislatively enacted same-sex marriage rights has explicitly included religious liberty protections within such legislation. All of these states have created a religious exemption allowing clergy members to refuse to perform marriage ceremonies. Many others provide further protection by preserving the right of a church to refuse to accommodate marriage ceremonies on its property. For example, Maine’s Revised Statutes section 655.3 provides:

This chapter [governing same-sex marriage] 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.

Many of the other states that allow same-sex marriage have codified even more detailed protections of religious liberty. For an overview of each jurisdiction’s relevant statutory language, click here.

In addition to the nine states that have legislatively approved same-sex marriage (and the District of Columbia), four other states—California, Connecticut, Iowa, and Massachusetts—have judicially recognized such marriages. While the religious liberty protections outlined in these decisions are arguably less robust than what is found in the state statutes discussed above, each judicial opinion carefully and unequivocally sets forth the basic principle that no minister, pastor, or other clergy will be forced to perform a marriage ceremony that contravenes his or her religious beliefs.

For example, in California, the state Supreme Court ruled in 2008 that same-sex couples had a right under the state constitution to marry. Although this ruling was overturned by the voter enacted constitutional amendment banning same-sex marriage known as Proposition 8, the language used by the Court to protect religious liberty in the context of same-sex marriage recognition by the state remains relevant because it was repeated verbatim in the 2010 District Court decision invalidating Proposition 8, which was effectively upheld by the United States Supreme Court last week. On the issue of religious liberty, the Court 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.

Click here to read the relevant religious liberty language in each of the other three states’ Supreme Court decisions.

While same-sex marriage recognition leaves open many interesting questions regarding religious liberty, one area that appears to be settled is whether a clergy member or church can refuse to perform or accommodate a same-sex marriage ceremony. The answer in every instance thus far has unequivocally been yes and there is nothing to suggest that future cases will be any different.