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Ozarks 2020

Protecting Your Church From SSM Lawsuits

Part of stewardship is caring for what the Lord has entrusted to us. Elders and pastors have a stewardship to shepherd their people, and they also have a stewardship to protect their church’s property and resources (building, finances, etc.) from lawsuits.

When the same-sex marriage case was argued before the Supreme Court this year, the US Solicitor General, Donald Verrilli, said that if the court rules for same-sex marriage (which they did) then tax-exempt status for churches “is going to be an issue.”

With that kind of clarity, churches really have no excuse for being unorganized.

[As a side note, I’m old enough to remember when the mantra of the gay-rights movement was “don’t like gay marriage? Don’t have one!” Ha. Those were the good old days].  

So what can churches do to protect themselves?  Well, it is interesting that in God’s providence the main way churches can protect themselves is by doing things that good ecclesiology suggests anyway. In other words, many of the things we can do to protect ourselves (codifying membership, having a clear statement of faith, having standards for elders, by practicing church discipline, etc.), also serve to make our churches more spiritually mature.

In order to appreciate these steps, you first have to understand the threat and how a lawsuit would likely play out. Most churches do weddings, and many churches allow outside groups to rent/use their building. Suppose a same-sex couple calls your church and asks if you could host her wedding. You decline. You are sued for discrimination (and if you don’t think this kind of thing happens, read this).

To win their case, the couple would likely have to demonstrate a few things: that your church is open to the public, that your church lets others use your facility, and that you refused their wedding because of their sex. Even in states with religious protection laws, there is serious liability for churches under these circumstances.

Here are some practical steps that every evangelical church should follow to protect themselves from such a scenario:

Membership

Your church needs a clearly defined list of who is part of the congregation and who is not. So much of the rest of this advice hinges on having a healthy membership. If your church has an “everyone who attends is a member” policy, then it will become very difficult to defend yourself in a discrimination suit.

Statement of faith

Your church needs a clear statement of faith (or “what we teach” document) that articulates clearly three major points: 1) how your church defines sexual immorality/marriage, 2) that your elders are the leaders of the church and are the ones who interpret the statement of faith, and 3) that your church practices church discipline according to Matthew 18, 1 Corinthians 5, and Titus 3.

If your statement of faith is not clear on marriage, then it deserves an upgrade. I have heard from some pastors that they do not want to tinker with their statement of faith because it sounds like an over-reaction to a cultural trend. I have sympathy for that argument. Nevertheless, this is the issue of the day, our country’s highest attorney has warned churches that legal action is coming, and it is simply prudent to articulate what your church teaches on this issue.

Second, if your church does not describe whose job it is to interpret the statement of faith, then it open a door for ambiguity that could be exploited in a lawsuit.

Third, your church should have a policy in place to remove people from membership who live in such a way that demonstrates unrepentant sin and wanton disregard for the church’s pursuit of holiness. Basically, if a member does pursue an immoral life, there needs to be codified way to remove them from membership.

Signatures

The leadership of the church should make a good-faith effort to have the members of the congregation all on record as understanding what the church’s position is on marriage and church discipline. Obviously the most effective way to do this is by having members sign a statement that they have read the statement of faith, and that they recognize this as the church’s teaching. While not necessarily saying they agree with every jot and tittle of it, they should at least affirm that they recognize that it represents the church’s teaching.

Marriage/building use policy

Your church needs a written policy on exactly who they will allow to use their building for weddings or other events. The cleanest, easiest way to do this is to have a policy that says that building can only be reserved by members for events that further the mission of the church as described in the statement of faith. With many churches, a policy that restrictive is not feasible; in that case, the elders really should look at a risk/reward concept of how they use their building. Each time they allow groups not affiliated with the church to use the building, they are increasing their exposure to a potential lawsuit.

Which is fine—I’m not advocating that churches go into lock-down mode or anything. Of course we take risks for the sake of ministry. My point here is simply that elders should make intelligent choices about the risk they are exposing their congregation to for the sake of letting a neighborhood group use the building.

Now, the whole point of having a marriage/building policy is for your church to follow it. If you have a policy that says, for example, that in any wedding at the church either the bride or groom must be a member, then it seems like you are safe. But if you get sued, and the litigants are able to show that you often broke that policy, then the legal protection that policy affords has suddenly evaporated.

Counseling/adoption assistance policies

Your church should also have codified your policy on who you counsel, and that your pastoral counseling is in accordance with your church’s statement of faith. And if your church gives aid to parents who are adopting children, you should spell that out as well. Who qualifies? If you counsel non-members, or if you give financial aid to non-members, you possibly lose a layer of legal protection.

Employment policy

Your church should have a clear policy on who you would employ. Will you employ non-members? It is not enough to simply say that you only employ people who subscribe to your statement of faith, because you might then be in the position of having to explain how your statement of faith relates to the duties of, for example, a janitor or bookkeeper. If your church does employ non-members, you should have their job description explicitly connect their duties to the statement of faith.

Outreach/community work

If your church is involved in outreach ministries, or any ministry in the community at large (ministry that serves/targets non-members), you should have documents approved by the elders that clearly state how those ministries further the religious/faith nature of the church. This is critical for the simple reason that if your church presents itself as a typical non-profit that simply betters the community through social work, there is less of a legal defense than if all of your social work is overtly religious and tied to your church’s mission.

Legal Review

Your church should hire a lawyer skilled in this area and familiar with your own state laws to review your church operations, by-laws, and policies. Obviously this blog post does not count as legal advice, but is simply meant give elders a place to start in evaluating their policies and protections.

How this looks in practice

If a church has all of these protections in place, and a same-sex couple asks to use the church for a wedding, the issue is not about the sex of the bride and groom, but rather the issue is that the church only uses their facilities for members of the church. So far, that is a fairly locked-down approach, and it has survived court challenges already.

In fact, if churches have a firm statement of faith, membership, church discipline, and a members-only policy, then Supreme Court precedent is on their side. In Hosanna Tabor vs. EEOC (2012), the US Supreme Court ruled 9-0 that a church should have full authority to decide whom they want to hire, assuming it is in-line with their duties (in the exact case, an employee was church disciplined for threatening to sue the church, and thus lost her employment as result of losing her membership).

Towing the line with church membership is probably going to offer a church more protection than simply passing a statement about a refusal to host same-sex marriages (in fact, UCLA law professor Eugene Volokh wrote yesterday about how those kind of statements themselves may soon be treated as criminal).

And if the threat of lawsuits gets churches to take the concept of membership more seriously—well, (to quote Paul), “this was the very thing we were eager to do in the first place.”

If you are a pastor or elder, here are is a key resources for you to use: The Alliance for Defending Freedom worked with the Southern Baptist Convention to put together a 44-page booklet that walks through the above points in more detail (the full PDF is here, and here is a 5-page summary, also in PDF).