In June the U.S. Supreme Court struck down a key provision in the Defense of Marriage Act and dismissed, on technical grounds, a case challenging same-sex marriage in California. The rulings were considered victories for advocates of marriage equality.
So how does this affect houses of worship? The answer is easy: it doesn’t.
Houses of worship that oppose marriage equality aren’t going to be forced to perform wedding ceremonies for same-sex couples. They aren’t going to be compelled to allow LGBT people to join their congregations, either. They aren’t going to be made to do anything.
This would seem to be a fairly obvious point. The First Amendment to the Constitution gives houses of worship the absolute freedom to determine who meets the criteria to receive their sacraments. Any person church leaders determine doesn’t measure up can be denied access to these religious ceremonies. End of story.
If it’s that simple, why is it necessary to even say this? In the wake of the two high court rulings, some religious right groups have launched a deliberate campaign of misinformation and hysteria. They are trying to make pastors and their churches believe they’ll be forced to officiate at same-sex ceremonies.
Such claims have been knocking around on the fringes of the religious right for years. They got a big boost in mid-July when Todd Starnes of the Fox News Channel issued a column headlined, “Churches Fear Lawsuits over Gay Weddings.” The commentary detailed how some religious leaders are taking steps to alter their bylaws and other internal documents to make it clear that they won’t perform same-sex weddings.
Why would churches do this? They’ve most likely been led to this place by the Alliance Defending Freedom (ADF), a large religious right legal group based in Arizona. ADF attorneys undoubtedly know that the First Amendment would bar any lawsuit against a church that refused to allow a same-sex wedding, but there’s little money to be made in disseminating level-headed information, so the ADF reached for the more lurid stuff.
“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,” the ADF’s Erik 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.”
Sure. And I could also choose to be proactive by lining all my hats with aluminum foil to prevent being abducted by people from Venus. That scenario is about as likely as a church being successfully sued for denying a marriage ceremony to any couple, same sex or opposite sex.
To understand why this is so, put aside same-sex marriage for the time being. Do other types of couples have any legal right to demand a church wedding? Of course not. A Protestant couple can’t legally compel a Catholic church to marry them. An interfaith couple has no right to insist that a church that does not support such unions perform their ceremony. A church that preaches racial segregation—yes, there are still a few of them around—can’t be required to marry an interracial couple.
If these couples have no legal basis to insist that houses of worship offer them marriage ceremonies, why would same-sex couples?
The answer is that they don’t either. Houses of worship have an ironclad right to determine which people qualify for their services and sacraments. A Burger King may have to serve you as long as you’ve got a shirt and shoes, but a church does not. It can require much more.
The right of church autonomy in this area is so clearly embedded in the First Amendment that it has never seriously been challenged. Consider that same-sex marriage was first legalized in Massachusetts in 2003—a full ten years ago. How many houses of worship have been successfully sued since then for refusing to preside over same-sex weddings? Zero.
To my knowledge, there haven’t even been any cases like this filed. A moment’s thought demonstrates why: First of all, even the dimmest graduate from the worst law school in the country would realize that a case like this simply has no legs. Secondly, who would bring such a legal challenge? It’s not as if scads of same-sex couples are itching to mark their special day by exchanging public vows in front of the local fundamentalist pastor known for being an anti-gay bigot.
But let’s say a couple were to try it, just to prove a point or stir the pot. They would lose. They would lose for the same reason that a Zoroastrian family could not successfully sue a Lutheran church for refusing to provide a funeral service for dear departed Dad: you simply can’t force a house of worship to provide you with its sacraments.
It’s true that in America, anyone can file a lawsuit. Winning one is quite another matter. It’s also true that there may be lawsuits when secular, for-profit businesses refuse to provide services to same-sex couples (such as the owner of a bed and breakfast refusing to allow a same-sex couple to rent a room or a wedding photographer who won’t shoot the ceremony).
But the store on Main Street isn’t the same as the church around the corner. The law treats individuals who are engaged in commerce differently than non-profit houses of worship whose main goals are spiritual, not temporal. Religious right legal groups are trying to conflate the two, but Americans aren’t going to fall for that.
What’s really bothering the religious right is that cultural attitudes in America are changing. As more and more people support marriage equality, the anti-LGBT views held by so many fundamentalist Christians and the Catholic hierarchy look increasingly outdated and, yes, bigoted.
This is happening due to cultural evolution, not government pressure. What some religious groups want is for the government to find a way to shield them from increasing public disapproval. The government has no obligation to play this role.
Hysterical religious right claims that churches will be forced to perform same-sex weddings are a desperate attempt to fan anew the flames of the culture wars—and coax a few bucks from the wallets of their followers.
This puerile argument may sway some of the faithful. The rest of us know better.
Rob Boston is senior policy analyst at Americans United for Separation of Church and State and a board member of the American Humanist Association.