With views on same-sex marriage, sexual conduct and gender identity evolving on a cultural level, church leaders are asking about the legal implications for Christ-centered, faith-based organizations.
A webinar addressing such issues was hosted by the Evangelical Council for Financial Accountability (ECFA) and Christian Legal Society (CLS) recently.
Attorneys Kim Colby of Christian Legal Society, Stuart Lark of Bryan Cave HRO and Steve McFarland of World Vision spoke about issues that could be faced by churches and other faith-based organizations and steps that could be taken to deal with them.
Gender and sexual orientation issues
Colby pointed out that conventional Christian views regard gender identity as biological at birth, that marriage is between one man and one woman for life, sexual conduct is exclusive within marriage and sexual orientation is distinguished from conduct. However, the progressive cultural views assert that gender is chosen throughout life, any couple can marry for a mutually-agreed duration, sexual conduct is between consenting adults (and teens), and sexual orientation is inseparable from conduct.
Colby indicated that more and more people believe that gender can be changed throughout life and that casual consent for sex has replaced the Christian covenant that sexual conduct is between a man and woman in a committed marital relationship. The belief that sexual conduct can be between two people in a non-committed relationship “may become the norm,” Colby said.
The Supreme Court’s June decision declared the federal Defense of Marriage Act (DOMA) unconstitutional, with its majority ruling reflecting a view that opposition to same-sex marriage could be viewed as hostility. For now, states still may choose to limit marriages to heterosexual couples, but the DOMA ruling has laid groundwork for future court challenges that may require states to recognize same-sex marriages as a constitutional right.
Thirteen states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington) and the District of Columbia recognize same-sex marriages, and a New Jersey law allowing such unions goes into effect Oct. 21.
Colby observed that non-discrimination laws are “good and essential,” but they are increasingly misused to punish religious persons for their beliefs. They should be used to “protect their rights not penalize them.”
She cited the New Mexico Supreme Court ruling that held a photography company had engaged in sexual orientation discrimination when it declined on religious grounds to take photos at a same-sex commitment ceremony. Owners of a bakery in Oregon and a bed and breakfast in the United Kingdom, again citing their religious beliefs, have faced similar allegations.
Tax exemption for religious and charitable organizations is sometimes conditioned on conformity to non-discrimination requirements established by the government. If the trend continues of laws prohibiting discrimination on the basis of sexual orientation, gender identity, etc., tax exemption for organizations with conventional Christian views on sexuality and marriage may be at risk.
An ‘inconceivable’ notion
Lark noted that such action seems “inconceivable” but observed that local, state and federal laws prohibit employment discrimination on the basis of religion, sex, marital status and sexual orientation. He pointed out that allegations of unlawful discrimination are also on the rise, particularly in the areas of employment disputes and the refusal of businesses and other groups to provide services that would violate their moral or religious convictions.
However, there is stronger protection for actions involving employees considered to be “ministers.” A 2012 Supreme Court ruling unanimously recognized the “ministerial exception,” which provides an exemption from all protected classes for employees who are considered to be “ministers.”
Lark also pointed out that ministers are protected from being required to perform same-sex ceremonies that would violate their moral or religious convictions, but there is the threat that such ceremonies could be held at the church or organization’s facility under the theory of sexual orientation discrimination. This is almost certainly the case for those churches that allow their facilities to be rented or used for a fee for other purposes.
A reflection of Christian standards
To avoid such potential conflicts, McFarland suggested that churches and faith-based organizations “prayerfully identify their beliefs from a Biblical standpoint,” mentioning that “denominational tradition is not as persuasive … as plenty of Scriptural citations adopted by your board to show their importance to you.” These beliefs should be concretized in the organization’s by-laws or in the session’s manual of operations.
He said it is important to have the beliefs of the organization affect the conduct of the employees and those who may be affiliated with the organization, to reflect its Christian standards. These expectations should be concretized in the church’s employee and volunteer manuals.
“It reinforces the sincerity of your religious beliefs,” McFarland said. “You want your mission message to be consistent so that everyone who comes in contact with your organization gets the same message that you are about Jesus Christ and doing work for Jesus Christ. It reinforces rather than contradicts.
“If your mission is faith-based, make sure your staff is aware of expectations.”
McFarland expressed that there be explanation of your organization’s Christian character and mission through documentation of how policies and activities express and exercise your religious beliefs. That is done by:
- Affirming your religious exercise and expression of these beliefs in all activities.
- Expressly stating requirements for employees and others.
- Explaining how the association of your employees and volunteers is necessary to the expression and exercise of religious beliefs.
He also suggested that operations be focused on the mission of the church/organization, both on paper and in practice, while providing clear public notice to prospective participants of your faith-based policies. He also observed a need for distinguishing sales of goods/services from commercial operations in relation to mission and being open with the public about your policies.
Dealing with the dilemma
Lark noted that there can be quite a dilemma associated with conducting the ministry of the church/organization while facing the possibility of discrimination allegations.
“It really does present a dilemma for all organizations engaged in ministry,” he said. “We’re trying to reach the lost and reach the public. But how do we accomplish our mission while preserving our character and who we are?”
Adoption of a complete policy regarding facility use also is important in reducing the risk of discrimination allegations.
Lark highlighted connecting permitted uses of the facility to the mission of the organization as well as prohibiting uses by others that convey support by your organization for contrary views. Such action would require spiritual discernment and should be determined by your organization.
“You may choose to allow use where views represented do not have your support,” Lark said, adding that such decisions would need to be made by recognized leaders of the congregation or governing body.
Disclaimers or other restrictions also can be used, and administrative issues such as hours/scheduling, space, costs/fees, liability/insurance, security, cleanup, food/beverage and leader contacts also need to be clearly outlined.
Consideration also should be given to church and minister status to strengthen religious exemption claims. Church status should accomplish the mission through a congregational focus, with some type of ministers and inclusion in some form of church association as an option. Minister status should be clearly outlined through job descriptions/titles in an employee handbook, along with regulations for training/education as well as any calling and commissioning ceremony.
Bathing in prayer
In terms of advocacy, prayer is essential, Lark said, as Christians seek to influence legislative initiatives dealing with laws reflecting cultural trends and broader religious exemptions and litigation.
“Advocate with God through prayer and seek spiritual discernment,” Lark said, emphasizing a cultural change through sharing of the Gospel. “As the Gospel first changes hearts, it also changes cultures and, therefore, it affects laws.”
All three attorneys noted that there are different sets of employment laws in all 50 states, so there is no specific template or policy to use as a blueprint in seeking religious exemption. They recommended customization and fine-tuning of such policies be handled with the assistance of legal counsel and provided contact information for those seeking additional information.
Kim Colby can be reached by email at kcolby@cls.net. Stuart Lark is available at stuart.lark@bryancave.com, and Steve McFarland’s contact is smcfarla@worldvision.org.