Texas Churches, Same-Sex Marriage and Nondiscrimination

Editor’s note: As public and legal attitudes toward same-sex marriage shift in our nation, some churches are concerned about their rights to determine building use and even to decline to conduct a ceremony when doing so would conflict with biblical convictions. SBTC’s legal counsel, Jim Guenther, answers some of the pertinent questions below.

How does the recent U.S. Supreme Court decision to void the federal Defense of Marriage Act, along with other ominous signs, such as lawsuits against businesses that “discriminate” against same-sex couples, affect Texas laws regarding marriage? 

While the concept of marriage is rapidly changing in this country, marriage in Texas remains understood in the law as the legal union of a man and a woman. It is in both the state statutes and the state’s constitution. The recent decision by the United States Supreme Court to declare the federal Defense of Marriage Act unconstitutional did nothing to change the law in Texas.  So, for the present, same sex-marriage discrimination is not an immediate direct issue for Texas ministers and churches.

It is likely that someone will eventually challenge the constitutionality of the Texas law. The equal protection argument used to void the federal Defense of Marriage Act would likely be used in an effort to have the Texas law declared unconstitutional. It is more likely changes in Texas will be propelled by court decisions than it is that the legislature will alter the traditional legal understanding of marriage.

In anticipation of the possibility of same-sex marriage becoming legal in Texas, is there anything a church needs to do if it wants to maximize its chances of being able to continue its present practices?

No. The strength of the First Amendment’s right to freely exercise religion and to be free from state entanglement is at its greatest when it comes to the local church’s faith and practice, in its choice of its ministers and its members, in what may be preached from the pulpit and in its religious activities. The First Amendment shield remains in the closets of Texas churches. Time and events will tell when and how the shield might come to be needed, and how effective it will be when it is put to use.

Should churches amend their governing documents to specify their religious beliefs regarding marriage?

Although not necessary to support the church’s existing right to free exercise of religion, that suggestion is a good idea for many reasons. Simply naming the BFM 2000, or other statement confirming a biblical definition of marriage, as the church’s statement of faith would put this in place.

If a church allows non-church members use of church facilities for a fee, could that move the church closer to being required to allow use by non-church members for purposes that are inconsistent with the church’s statement of faith?

 Likely not.  However if a church is anxious about the law, it would make sense for it to establish polices which it would follow to avoid being “open to the public.”  The most reasonable policy might be to say the church facilities will only be used for purposes consistent with its statement of faith; specifically to include marriage ceremonies.

What might the future look like regarding this issue?

Ministers and churches in Texas will, in any event, continue to have their First Amendment right to freely exercise their religion. If it comes to pass that the United States Supreme Court declares there to be a constitutional right for same-sex couples to marry, the ultimate question in the law is going to be how that right fares when it comes into conflict with a minister’s or a church’s free exercise of religion.

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