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Addressing churchesí legal concernscomment (0)

January 9, 2014

As church leaders deal with the question of how best to minister to same-sex couples who come to their churches (see stories, pages 1, 4–5), another question may come up: If churches are pressed to accommodate those couples in a way that violates their convictions, what legal rights do they have to say no?

Church membership

A church should never feel it is legally forced to accept by membership someone who is living a homosexual lifestyle, according to legal counsel.

“The First Amendment to the Constitution prohibits Congress — or the states — from enacting laws that interfere with the free exercise of religion,” said Dennis R. Bailey, a Montgomery attorney who is an expert on First Amendment law. “Religions set their own canons and beliefs. No law could be passed under the First Amendment requiring churches to baptize anyone.”

Jim Guenther, a Southern Baptist Convention attorney, agreed. If someone sued a church over membership, “the case would be dismissed because no court has jurisdiction over such matters,” Guenther said. “Civil rights laws include, at the federal and state and sometimes local level, prohibitions against discrimination in ‘public accommodations.’ Those laws typically make clear, in one way or another, that the law does not apply to churches.”

If the law did not make it clear, a court would, he said.

Performing or recognizing same-sex “marriages”

Right now, same-sex “marriage” is not permitted in Alabama, and an amendment to the state constitution prevents Alabama from legally recognizing such “marriages” from other states. It will stay this way for the foreseeable future, said Eric Johnston, a Birmingham attorney and president of the Southeast Law Institute.

But Johnston predicts the U.S. Supreme Court will eventually declare laws like Alabama’s unconstitutional.

If that happens, might Alabama churches have to worry about being forced to perform a same-sex “marriage” ceremony? Guenther said no.

Churches, he said, “will continue to have their First Amendment right to freely exercise their religion.”

Though that First Amendment right is sufficient legally, Guenther said, some churches are choosing to put wording in their governing documents to state clearly that performing a same-sex “marriage” ceremony goes against their church’s historical religious beliefs.

For more information about making such an addition to church bylaws, visit www.thealabamabaptist.org and type “potential marriage statement” in quotes into the search bar to read the article “Two Alabama churches address same-sex marriage-like ceremonies.” A possible wording offered by the Alabama Baptist State Board of Missions is available at www.alsbom.org/resources/a-potential-marriage-statement-for-churches.

Use of facilities

Something else to consider including in a bylaw addition is how your church facilities are to be used, Johnston said. He suggested considering stating whether or not facilities will be able to be used for ceremonies, baby showers, clubs or community groups that by their nature endorse same-sex “marriage.”

At this point, there is no legal need for a church to do so, but it “may give churches peace of mind” and allow them an opportunity to affirm their stance, he said.

Teaching in the church

A statement of beliefs in bylaw form also could allow church leaders to make a written stance about the doctrine taught in the church, Johnston said.

“They could include that the preaching of the church will conform to those beliefs,” he said, noting that this may become especially important if, say, a same-sex couple begins to attend the church and a small-group leader becomes increasingly accepting in his or her biblical view of their situation.


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