Ways for Churches to Approach Same-Sex Marriage

On June 26, 2013, the Supreme Court handed down two landmark decisions involving same-sex marriage.  Because of these decisions, the federal definition of “marriage” can no longer exclude same-sex couples who were legally married under state law.  Similarly, this summer the Supreme Court is expected to review four same-sex marriage cases which may definitively decide the legality and enforceability of same sex-marriages across all states.  Is your church prepared for these changes?

The June 2013 Supreme Court decisions^[1] drastically altered the landscape of traditional marriage.  Most significantly, the Windsor decision struck down the provision of the Defense of Marriage Act (“DOMA”) which had federally defined marriage as a union between one man and one woman.  Under these decisions, the definition of “marriage” under federal laws and regulations can no longer exclude same-sex couples who are lawfully married under state law.  States that have already redefined marriage to include same-sex marriage (e.g., MD and DC) cannot discriminate against same-sex couples for federal benefits.^[2]

On January 16, 2015, the Supreme Court announced that it would grant review in the four same sex marriage law cases out of the Sixth Circuit:  Obergefell v. Hodges (Ohio), Tanco v. Haslam (Tennessee), DeBoer v. Snyder (Michigan), and Bourke v. Beshear (Kentucky).  The four cases were consolidated and their petitions for writs of certiorari were granted but limited to the following two questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? and 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? The briefs will be filed by April 17, 2015, and oral argumentation will occur thereafter, with an expected Supreme Court opinion by end of June 2015. The opinion of the Supreme Court should give a definitive answer about the legality and enforceability of same sex marriages by states and how they apply across state lines.

If your church is concerned about how the results of these decisions may impact its religious liberties, it should consider taking some of the following steps:

1. Draft a clear and concise clause defining marriage that addresses both the definition of marriage and the scope of sexual corruption/deviation.

Your church’s marriage clause must not single out homosexuals or homosexual activity in a way that could potentially result in claims of discrimination based on sexual orientation.  Although sexual orientation is not currently a “protected class” under federal law, if your church singles out homosexuals as the target of your policies, you may trigger a lawsuit or a threatened lawsuit that can be an expensive predicament, even if your church is ultimately successful.

Moreover, Scripture does not single out homosexuality as the only aspect of a non-Christian lifestyle, or even the most egregious non-Christian behavior.  In fact, Scripture’s teaching on sexuality is far broader than homosexuality. To be true to Scripture, your definition of marriage should recognize and describe Scripture’s broad teaching against sexual sin and sexual perversion.  Including this scope will help to confirm that your opposition to homosexuality stems strictly from your religious belief in what Scripture teaches, not in any prejudice against homosexuals. If sexual orientation were to ever become a federally protected class, having this broad language will help to protect your church against the threat of litigation for its position on homosexuality.

While we can propose many different doctrinal statements to be tailored a church’s or religious nonprofit’s beliefs and culture, they should always contain key Biblical provisions that define marriage and denounce sexual behavior outside of marriage.  For example:

• We believe that Marriage unites one man and one woman in a lifetime commitment to each other (Genesis 2:23-24; Matthew 19:4-6). Marriage provides for intimate companionship, pure sexual expression (Genesis 2:25; Ephesians 5:31-33), procreation, and reflects the relationship of Christ and the church (Genesis 1:28; Proverbs 5:15-19; 1 Corinthians 7:1-5).
• We believe that God has commanded that no intimate sexual activity be engaged in outside of a marriage between one man and one woman. We believe that any form of homosexuality, lesbianism, bisexuality, bestiality, incest, fornication, adultery, and pornography are sinful perversions of God’s gift of sex.  We believe that God disapproves of and forbids any attempt to alter one’s gender by surgery or appearance (Genesis 2:24; Genesis 19:5, 13;Genesis 26:8-9; Lev. 18:1-30; Romans 1:26-29; 1 Cor. 5:1; 6:9; 1 Thess. 4:1-8;Hebrews 13:4). Such sinful patterns, if not repented, will be a barrier to membership, employment and leadership in a body of believers.

2. Look at your policies to see where you need to include this definition of marriage and tie your religious beliefs to sexual conduct and lifestyle.

There are four broad areas that need to be reviewed: your church’s Statement of Faith, church bylaws and governing documents, employment handbook and code of conduct; and facilities use and marriage policies.

a. Statement of Faith

This statement defines the core of the church’s religious belief and should have a clear statement on marriage.  The Statement of Faith influences almost all the other parts of church life, including membership, employment, and church use.  These policies will likely refer back to your Statement of Faith, so it is essential that you address marriage here.

As a Statement of Faith, it is imperative that you have Scripture verses littered throughout the Statement.  Many churches put little to no Scripture references in their Statement of Faith, but this is one situation where less is not more.  Do not be concise.  While there is no need for a book-length theological treatise, a substantial list of applicable Scriptures following a religious doctrinal statement in your Statement of Faith will go a long way towards showing the court that your issue involves matters far outside the realm of the law.

b. Church Bylaws and Governing Documents

When faced with potential litigation, the church constitution and/or bylaws help the church proactively frame the argument, not as a matter of discrimination against individuals, but rather as a church abiding by and adhering to core religious beliefs.^[3]  This is key to make sure that the legal protections given to a church—all of which center on sincerely held core religious beliefs—remain in place.  The governing documents can contain your Statement of Faith or reference it as a requirement for membership in the church, employment in the church, and conduct within the church.

c. Employment Handbook and Employee Code of Conduct

This is a particularly important area for a church to define what it believes about homosexuality.  If employees are not required to adhere to the Statement of Faith, it is difficult to defend against allegations that the church’s employment decisions were in reaction to an employee’s beliefs on homosexuality.  The employee handbook can require all employees to abide by the church’s Code of Conduct, which should reference the Statement of Faith and the church’s position on homosexuality and sexuality, in general.  This can be the determining factor when determining the true motivation behind employment decisions.

For example, if an employee who leads the youth ministry comes out as a homosexual, the church’s decision to terminate this employee could be seen either as discrimination based on sexual orientation or as discrimination against someone who does not share the same religious beliefs as the church. If the church has a code of conduct for all employees that prohibits them from living lifestyles disagreeing with the Statement of Faith, it is much easier to base the employment decision on religious beliefs and protect the church’s right to discriminate based on its religious beliefs.

d. Facilities Use and Church Marriage Policies

Lastly, it is important to clarify in church policies that marriages, or other uses of the church facilities, need to be done in a way that honors the church’s Statement of Faith and religious beliefs.  In light of recent and future Supreme Court decisions, each church needs to consider how its facilities will be offered for community use in a God-honoring manner.

Prepare your church for the uncertain marriage climate by contacting an experienced attorney at the Northern Virginia office of Simms Showers.

Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum.  Please contact Robert Showers, Daniel Hebda at djh@simmsshowerslaw.com or Justin Coleman at jrc@simmsshowerslaw.com  for legal advice that will meet your specific needs.

[1] United States v. Windsor, 2013 U.S. LEXIS 4921 (June 26, 2013); Hollingsworth v. Perry, 2013 U.S. LEXIS 4919 (June 26, 2013).

[2] States that have redefined marriage to include same-sex marriages include: CA, CT, DE, IA, MA, MD, ME, MN, NH, NY, RI, VT, WA & District of Columbia. Id.

[3]  Michael Foust, Attorney: Church bylaws should define marriage, Baptist Press (February 12, 2013), available at, .