Legal Advice: Why Congregations Should Very Explicitly Define “Marriage” in their Constitutions and Bylaws
This is from Baptist Press, and…seems to me to something our Lutheran congregations would want to consider very carefully.
NASHVILLE (BP) — With the U.S. Supreme Court set to take up gay marriage and potentially legalize it this summer, churches that host wedding ceremonies or other events for traditional couples should examine their bylaws and shield themselves from the impact of possible litigation, says an attorney who specializes in religious liberty issues.
The justices are scheduled in March to hear two cases concerning gay marriage, and by June could either uphold the traditional definition of marriage or legalize gay marriage in all 50 states. Alliance Defending Freedom (ADF) — a religious liberty legal organization — is hoping for the former but preparing churches for the latter, just in case.
A number of situations could place churches in legal trouble, such as congregations who would:
– allow a traditional couple but not a same-sex couple to use their facility for a wedding ceremony.
– allow a traditional couple but not a same-sex couple to take part in a marriage class or retreat.
– terminate an employee involved in a same-sex wedding.
Bylaw language defining marriage in the biblical sense doesn’t mean a church won’t face a suit or a complaint, but it does mean the church would be in a much better situation legally, said Erik Stanley, senior legal counsel for ADF.
“I think we’re in a day where every church needs to have a statement in its bylaws of its doctrinal beliefs on marriage and sexuality,” Stanley told Baptist Press. “This is a proactive approach that churches can take to head off any claims of discrimination in the future, should they occur. There’s no magic language for such a bylaw statement, but it should be some form of a statement of the church’s religious beliefs.
“What that does is it allows for a good defense of a church to any type of discrimination claim that may arise, by saying, ‘Look, this is part of our religious beliefs.’ When we fight on the ground of protecting a church’s religious belief, then we have a lot of ammunition in our arsenal from a constitutional perspective.”
Even without gay marriage legal nationwide, there have been lawsuits against churches.
In 1999 a woman who had worked as a youth minister at a Colorado Episcopal church was terminated after it was learned she was a lesbian living with another woman. She sued in federal court, but the lawsuit was dismissed, with the court ruling her suit was barred by the First Amendment. (The case was Bryce v. Episcopal Church in Diocese of Colorado.)
In 2001, a California church’s worship minister, Bob Gunn, was let go when it was discovered he was gay. He sued the church, primarily because the pastor told the congregation why Gunn — who was popular with members — had been fired. The church won in court. (The case was Gunn v. Mariners Church.)
ADF has listed on its website suggested bylaw language for churches. (Read the two ADF articles on the subject — http://www.alliancedefendingfreedom.org/content/docs/issues/church/Suggested-Lang-Church-bylaws.pdf and http://www.speakupmovement.org/Church/Content/userfiles/Resources/church_seven_bylaws.pdf. Also, read the suggested language at the end of this article.)
“What we tell churches is that the clearer and the more explicit you can make your religious beliefs about those issues, the better off you are going to be in defending yourself against a claim of discrimination,” Stanley said. “Because then it becomes: You’re not discriminating against an individual based upon their sexual orientation or marital status. You’re making a decision to abide by your religious beliefs. And that’s protected by the Constitution. The more that we can move this from the ground of a claim of discrimination based on sexual orientation or marital status to the ground of ‘We are simply abiding by our deeply and sincerely held religious beliefs,’ the better off a legal defense is going to be.”
The legalization of gay marriage, Stanley said, will impact religious freedoms.
“Religious liberty is on the chopping block any time same-sex marriage is legalized or normalized in the culture,” he said. “But we’re not defenseless and we’re not left hopeless. If same-sex marriage is legalized by the Supreme Court, these types of cases that we see pop up, they’re just going to become more commonplace.”
In January, Frank Page, president of the Southern Baptist Convention’s Executive Committee, urged Southern Baptists and other Christians to pray for the Supreme Court as it takes up the issue of marriage. Read his column here.
Following is ADF’s suggested language on marriage and sexuality for church bylaws:
“We believe that term ‘marriage’ has only one meaning and that is marriage sanctioned by God which joins one man and one woman in a single, exclusive union, as delineated in Scripture.
“We believe that God intends sexual intimacy to only occur between a man and a woman who are married to each other. We believe that God has commanded that no intimate sexual activity be engaged in outside of a marriage between a man and a woman.
“We believe that any form of sexual immorality, such as adultery, fornication, homosexuality, bisexual conduct, bestiality, incest, pornography or any attempt to change one’s sex, or disagreement with
one’s biological sex, is sinful and offensive to God.
“We believe that in order to preserve the function and integrity of the church as the local Body of Christ, and to provide a biblical role model to the church members and the community, it is imperative that all persons employed by the church in any capacity, or who serve as volunteers, should abide by and agree to this Statement on Marriage and Sexuality and conduct themselves accordingly.
“We believe that God offers redemption and restoration to all who confess and forsake their sin, seeking His mercy and forgiveness through Jesus Christ.
“We believe that every person must be afforded compassion, love, kindness, respect, and dignity. Hateful and harassing behavior or attitudes directed toward any individual are to be repudiated and are not in accord with scripture nor the doctrines of the church.”
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Michael Foust is associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email ( baptistpress.com/SubscribeBP.asp).
This is a very useful post, thanks.
Thank you for this, Pr. McCain. I am assuming that neither the CCM nor any of our district Constitution Committees have generated suggested language to address this matter. That will be important for clarity, consistency, and a more defensible position across the congregations of our Synod. Are you aware of any such efforts?
We are in the final stage (we hope) of revising our constitution and by-laws and do not have such a provision … yet. In Southern California, this could be a problem for us sooner than in many other locales.
No, I’m not aware of any verbiage suggested, or developed, by any LCMS entity. I did however pass the Baptist Press article on to the Secretary of The LCMS for his information.
This is not necessary in a confessional Lutheran context. Baptists must make this explicit in their bylaws because they have no creedal or confessional statement that is binding upon them. Each congregation is free to do or believe whatever they want to, just as no church has the right (in Baptist thinking) to intrude on any member’s conscience. We confessional Lutherans have explicitly subscribed our congregations and clergy to our confessions and we have insisted that the Scriptures and these confessions norm our doctrine and practice. In addition, every confessional Lutheran church body exercises some kind of doctrinal supervision over its member congregations and pastors and has adopted some statement or another on this matter. While individual Lutheran churches may want to put something about weddings in a policy manual, as my congregation does, it is unnecessary to put in the bylaws, which ought to be about procedures by which church governance takes place (release & acceptance of membership, frequency of voters assemblies, duties of officers, etc.).
Better to be safe, than sorry, is the point of the article. Lawsuits are rarely filed against “church bodies” but rather against individual congregations and/or congregational agencies. The more clear you are, the more quickly a lawsuit can be tossed on First Amendment grounds.
I’m not sure how much this article actually applies to LCMS congregations. The problem with many of the churches to which the article was probably addressed is that they often don’t have a concept of “membership” outside of who usually attends on Sunday morning. If they are like a lot of pastors in my area, they kind of get blank looks when you talk about “members” of the church. They have no official membership roll or their “membership” roll consists of only those who hold some kind of office or position in the congregation with most of those who attend services being, essentially, an audience. It is not uncommon for me to call a non-Lutheran church to let them know that one of their former members has taken instruction, is now a member of my church and that they may now remove them from their rolls and to be told, “we don’t really keep a list of members anyway.” So in many of these churches it’s kind of arbitrary whom the pastor will perform a wedding or funeral for or who can use the building for various functions.
The problem is that once you allow general use of the facilities to couples outside the congregation or have no definite idea of who makes up your congregation, especially if you charge for use of the building, then it can be argued that, in respect to the use of the building for weddings, at least, the church is not functioning as a religious institution but as a business providing a service (in this case providing a venue for weddings). Regardless of the constitution, some lawyer will be willing to argue that in doing so, the congregation has voluntarily placed itself under the civil laws forbidding discrimination in building rental etc.
A better protection for an LCMS congregation would be if the congregation simply limits use of the facilities for weddings to members of the congregation in good standing, members of other LCMS churches or those in the process of receiving instruction with the intention of becoming members. That way the use of the facility clearly falls under the function of the church as a religious institution and the church is at little risk of a lawsuit for violating civil anti-discrimination laws. It would be very difficult for a non-member couple (same-sex or otherwise) to sue a congregation for refusing to host their wedding on the basis that they were not members of the congregation. All the congregation has to do is say “but we tell everyone outside our congregation ‘no’ so it is hardly discrimination that we told this couple ‘no’ also. In such a situation the couple is hardly likely to find a lawyer, much less a judge, who would be willing to entertain their suit.
Of course, if the congregation has a same-sex couple on the rolls and not under church discipline, then you have a whole different problem to deal with anyway.
Matt, much better to be safe than sorry. Having a clear statement in a congregation’s bylaws will make it even easier to have a lawsuit dismissed on First Amendment grounds. I don’t think you really read the article carefully enough.
I have been on our district’s constitution committee for over a dozen years and its chair now for over a year. Congregations have great freedom to put anything in their constitution and bylaws that they want, as long as it does not contradict the Scriptures, the Lutheran Confessions, or Synod’s constitution and bylaws. Thus I would not rule such a clause out of order. However, it would not be wise to put a POLICY in the bylaws. Bylaws are not about policies, but about governing processes. Policies belong in the policy manual.
Let me try to explain it in detail, since so many congregations confuse the purpose of constitutions, bylaws, and policy manuals and end up putting stuff that belongs in one document in the other. The constitution outlines the structure of the organization. It names the officers and boards, defines the types of membership, states its purpose, explains about dissolution, and the like. Its analogy in the political realm is the U.S. constitution, which establishes the 3 branches of government and defines their powers. Bylaws are all about processes. They tell how members are released and accepted, how officers are chosen, how pastors and commissioned workers are called, how voters assemblies are held, and what the specific day-to-day duties of the officers and boards are. (The bylaws cannot create an office or board that is not already explicitly named in the constitution, although they may create committees to help the officers and boards [the permanent governance structure] carry out their duties.) The political analogy is with the House Rules or the Senate Rules, which explain how these bodies will implement their constitutionally mandated powers. A policy manual explains what the congregation will and will not do or permit. It is like the legislation cranked out by Congress and signed by the President.
Every church should have a policy manual that says what it will permit in the way of weddings, funerals, use of the facilities by organizations within and outside of the church, working with children and youth, financial oversight, and the like. I certainly recommend that churches make explicit in a policy manual their policies about weddings–not just about same-sex marriages, but about church music, pre-marital counseling and the like. The bylaws are just the wrong place to do it.