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 FAMILY RESEARCH COUNCIL 801 G STREET NW, WASHINGTON, D.C. 20001 202-393-2100 • fax 202-393-2134 • (800) 225-4008 order line www.frc.org March 2015 Issue Brief IF15C03 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. 2