How are clergy protected from being forced to perform same

How are clergy protected from being forced to
perform same-sex marriages?
Travis Weber, Esq.
Federal-Level Protections
Churches and ministers have solid protection under the First Amendment. At time of
publication, there is no appreciable risk that clergy would be compelled by a court to host or
perform a same-sex ceremony.
Federal Constitution
The First Amendment - Free Exercise and Establishment Clause
In Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694 (2012), the
Supreme Court held that “religious organizations” are protected in being able to hire and fire
the ministers they want under the “ministerial exemption” required by the Free Exercise and
Establishment Clauses of the First Amendment. This exemption applies to a narrow subset of
employers and employees (likely only churches or directly affiliated organizations, and only for
employees of those employers who are “ministers”), but prohibits virtually any interference
with hiring/firing decisions.
The First Amendment - Free Exercise
In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the Supreme Court
held that when evidence was presented that a law is meant to target a religious group even
though facially neutral, it must meet strict scrutiny. This would protect pastors from being
targeted by the government for their beliefs, though they have to prove this targeting. Thus,
Religious Freedom Restoration Act (explained below), under which they don’t have to prove
targeting, offers better protection.
The First Amendment - Freedom of Speech
In Hurley v. Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995), the Supreme Court
held that private parade organizers could not be forced to include gay rights groups of whose
message they did not approve, for this would compel the groups to speak a message against
their will and make free speech and freedom of association protections meaningless. The free
speech protections of this case would apply to pastors too.
The First Amendment - Freedom of Association
In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Supreme Court upheld the Boy Scouts’
freedom to associate under the First Amendment and not accept openly gay scout leaders on
the grounds that such forced inclusion would harm the group’s message. While this case dealt
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with the issue of freedom of association in the context of sexual orientation non-discrimination
laws, it would provide the same protections for churches and pastors to associate around their
beliefs.
Federal Statute
Religious Freedom Restoration Act
The Religious Freedom Restoration Act (RFRA), 42 U.S.C.A. § 2000bb-1, prevents the federal
government from substantially burdening a person’s exercise of religion through even a
generally applicable law or regulation, unless the government can show it is furthering a
compelling government interest through the least restrictive means available. This provision
would protect pastors’ free exercise of religion.
State-Level Protections
State Statutes
Whether churches fall under the jurisdiction of public accommodations laws could affect
whether they can be forced to permit same-sex marriages on their property. For instance,
Colorado specifically exempts churches from all public accommodations law, while other states
do not.
If churches are not explicitly exempt, there will be a determination of whether they fall under
the jurisdiction of public accommodation laws. If they do, and then open their doors to host
wedding on a for-profit basis, it is possible that they could be forced to host same-sex weddings
if they also host traditional weddings. Yet even if the church would have to open its doors to
the ceremony, the pastor of the church could not be forced to officiate it himself or herself.
Travis S. Weber is the Director of the Center for Religious Liberty at the Family Research Council (FRC),
where he focuses on all manner of legal and policy issues pertaining to religious freedom. Before joining
FRC, Travis worked in private practice, primarily litigating federal civil rights cases. He also handled
military-related legal issues and criminal defense matters. Travis is a graduate of the U.S. Naval
Academy and holds a J.D. from Regent University School of Law, where he served as the Notes &
Comments Editor on Law Review. Travis also graduated with an LL.M. in International Law (with
distinction) and a Certificate in International Human Rights Law from Georgetown University
Law Center.
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