Many of our clients disagree with the Supreme Court’s 5-4 opinion in Obergefell v. Hodges legalizing same-sex marriage throughout the United States and holding that denial of marriage licenses to same-sex couples violates the due process and equal protection clauses of the Constitution.  They are concerned with how this decision will affect their church, school, ministry, or for-profit business if they continue to uphold the Biblical understanding of marriage despite the ruling. 

While the majority opinion stresses that the First Amendment will protect the right of people of faith, and others, to “teach” and “advocate” the Biblical understanding of marriage, no mention was made of acting in accordance with that understanding. 

The dissenting Justices wrote that the Court’s opinion effectively labels the views of advocates of traditional marriage as bigoted and leaves them open to legal attack. And by basing its opinion on Constitutional grounds, the Court sets up a conflict between religious liberty, which is guaranteed by the First Amendment, and the newly discovered right to gay marriage. 

In light of the Supreme Court’s recognition of this fundamental constitutional right, many critical legal questions arise: 

  • Can a pastor, who is licensed by the state to perform wedding services, refuse to marry a same-sex couple? 
  • Can a church or other religious establishment refuse to host a same-sex couple’s wedding or wedding reception? 
  • What about a for-profit Christian business that provides wedding services to the public? 
  • Will a church or religious school or college risk its tax exemption if it refuses to endorse same-sex marriage? 
  • What if such an organization acts on those beliefs by refusing to provide married housing for same-sex couples while providing housing for opposite sex married couples, or by addressing letters to same-sex parent couples in ways that make it clear that the school does not recognize the couple’s marriage? 
  • How does the Court’s opinion affect the hiring practices of churches and religious organizations? 
  • Can a statement of faith still be required? 
  • Must equal benefits be provided to same-sex couples? 
  • How will this affect the ability of Christian adoption agencies, or even church-related informal adoption networks, to limit adoptions to opposite sex married couples? 
  • Can churches and religious organizations still rely on state statutory exemptions in light of the Court’s opinion?
  • Are there ways that these legal risks can be minimized?
  • Are we to remain faithful to God and marriage if it will cost us our money, our businesses, our jobs, or our freedom?  

Be wary of quick, one-size fits-all solutions, because the answers to these questions are not simple and may vary from church to church and organization to organization, and by individual state. The answers must be tailored to fit the individual practices and beliefs of each church or other organization. A one-size-fits-all solution is not likely to provide the best protection and may do more harm than good. 

Pro-actively, every church or ministry should consider adopting or amending its statement of faith to make clear its beliefs about marriage and adopting a facilities use policy governing its locations. Defensively, please know that the attorneys at Mauck & Baker have long defended the rights of people of faith in courts all across the country and in many different contexts, from religious land use cases to employment law cases. We are also equipped to defend the rights of conscience of those in the marketplace, like the wedding photographers, bakers, or florists.