The Supreme Court Finds a Right to Homosexual Marriage (3)

Previous article in this series: February 1, 2016, p. 212.

In the last two articles in this series, we looked at the Supreme Court’s ruling in Obergefell v. Hodges, which found a right to homosexual marriage. We also looked at the need for churches and schools to position themselves so that they are able to use the protections available under the First Amendment to the Constitution. In this installment, we will look at churches and schools and the specific measures they can take to assert their rights under the law. I would preface these comments by noting that these specific measures would be helpful to the churches from a legal perspective, but that we must still question the extent to which they are advisable from a church polity standpoint.

As we saw previously, the liberal majority in the Supreme Court specifically stated that “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths….”1 The law has long held that sincerely held religious beliefs ought to be protected and accommodated. Churches in particular have been given great deference in governing themselves so that they can operate in accordance with their sincerely held religious beliefs. It is, therefore, helpful for churches or other organizations to defend their religious rights if they have clear statements and policies setting forth their religious beliefs and delineating how those beliefs guide their policies. Groups such as the Alliance Defending Freedom, which specialize in assisting religious groups in defending their religious freedom, have developed sample statements of belief in regard to marriage and homosexuality, as well as policies that can be adopted to govern use of church property and other aspects of church life.2

One could ask why our churches would need to adopt policy statements such as these. If there are articles or sermons from our ministers that demonstrate beliefs, why is that not enough? The answer stems from the state of the church world today. In many denominations, one minister or one congregation may oppose homosexual marriage, while others in the same denomination or even in the same congregation may not. Because there is a lack of church discipline on this issue, the fact that someone in a congregation holds to a belief does not mean that it is the sincerely held belief of the congregation. If a congregation adopts a formal statement of its position in opposition to homosexual marriage or any other error, it would be difficult to refute the idea that this position is the sincerely held belief of the congregation.

By the same token, it would bolster the local congregation’s legal position even more if the entire denomination would adopt the same position. This can be illustrated by looking at the opposite situation, in which a local congregation adopts a position that is not supported by the denomination as a whole. The undersigned has been contacted by several local congregations who wish to adopt policies confirming their opposition to homosexual marriage. Some of these congregations belong to larger denominations that have refused to take disciplinary action on cases relating to homosexual practices. If a homosexual activist were to sue the local congregation for some alleged act of discrimination, the activist could point out that the congregation is a part of a denomination that is not necessarily opposed to homosexual behavior. The question would be raised as to whether this is really the local congregation’s sincerely held religious belief, since they remain a part of a denomination that refuses to discipline homosexual behavior. By the same token, a local congregation’s position would be bolstered if the denomination of which it is a part would adopt a statement of its position on homosexual marriage that is consistent with that of the local congregations.

When courts analyze whether policies are based on sincerely held beliefs rather than being mere pretexts for discrimination, it is also helpful if the policies are consistent with the church’s normal practices. In Reformed church circles, this is another reason to consider whether such statements of our beliefs should be formulated at the congregational level. Typically, the Reformed churches work together to formulate statements of beliefs, and those statements are adopted by the local congregations and incorporated into the individual congregation’s policies. In the case of the PRCA position in regard to homosexuality and marriage, this could mean that a statement of our beliefs in that regard is formulated by the cooperation and collaboration of the churches, and then the individual congregations could adopt those statements of belief and incorporate them into building use policies, employment policies, membership policies, and the many other areas of the church’s life that are potentially affected. Since local congregations of Reformed churches do not normally formulate statements of beliefs individually, an opponent could otherwise question why a congregation acted alone in adopting such a statement in relation to homosexual behavior and marriage.

Similarly, churches should give careful consideration into which documents such statements of belief or policies should be included. For instance, many groups advocate the inclusion of such statements into a church or school’s bylaws or even Articles of Incorporation. The benefit of including our positions in such documents is that statements included in bylaws are generally viewed as carrying more weight than a statement that is simply approved by the organization, because it takes more formal action to amend bylaws. By the same token, it may be viewed as even more weighty to include such statements in the Articles of Incorporation, which must then be formally filed with the state. However, we should again be cautious of incorporating a statement of beliefs into bylaws, if those bylaws contain no other statements of belief. Many of our congregations’ bylaws are simply standard non-profit corporation bylaws, and amending these to include a statement on homosexuality and marriage or policies addressing these issues would not only look out of place, it could give the impression that we hold this position to have more importance than other doctrinal positions.

Even if the denomination as a whole were to adopt a position statement, each congregation should still adopt the statement and determine where such a statement should be included in its own documents and records, depending on how statements of other beliefs are handled. But regardless of whether the beliefs are included in the bylaws or in a statement adopted by the council or congregation, formal action to adopt the statements should be taken. If not, the statements could be construed as merely a position statement that does not reflect the official position of the congregation. If the statements are not formally adopted, it could also beg the question as to why they were not, and whether there is a difference of opinion that prevents the statements from being formally adopted.

In our statement of faith, we should clearly set out our position regarding homosexuality, gender identification, and homosexual marriage. It is also a good idea to set out our basis for opposing these practices, that it is rooted in love—a love for God and a love for the brother/sister who walks in sin. In an age when any opposition to the practices of others is viewed as intolerant and possibly hate speech, it is important that we clearly set forth that true love requires that we oppose such practices and that we voice that opposition.

When a congregation has adopted statements of its beliefs, all policies and documents should be reviewed and revised to incorporate language consistent with those statements. These policies can be revised to address topics such as the preaching, employment with the church, use of church facilities, and volunteers with the church. Revised policies should reference the adopted statement of belief as the basis for the policy. Policies should also be reviewed to insure that policies are consistent across the board. For instance, many of the building-use policies being adopted state that the church property cannot be used by those who do not share the church’s stated beliefs with regard to homosexuality. If a church’s use policy allows use by others with differing beliefs, such as those from other denominations, this inconsistency could be problematic in a legal setting. We will discuss this aspect of the issue more fully later in this article under the concept of “public accommodation.”

Adoption of statements of belief by the churches also aids our Christian schools and even individual believers. We will discuss the protection of schools more fully in short order, but with regard to individuals, we have reviewed cases in the past under this rubric in which courts gave protection to individuals under the First Amendment Free Exercise of Religion based on sincerely held beliefs.3 If a school or individual can point to the stated belief of the church, this can only aid in proving that it is a sincerely held religious belief.

As with churches, the protection available to our schools stems from the Free Exercise of Religion guaranteed by the First Amendment to the Constitution. The difficulty with schools is that while churches are clearly recognized as religious institutions, schools are often operated by non-religious organizations, and often for nonreligious reasons. This means that special care must be taken to maximize the protection afforded to our schools under the Constitution.

First, our Christian schools should also adopt statements of faith stating our position with regard to matters of gender identity and sexuality. As with churches, suggested language and policies are available from sources such as the Alliance Defending Freedom.4 Employee handbooks, student handbooks, and other school policy statements should be reviewed and revised as needed to incorporate these policies. It would be best if these statements of faith were consistent with the language adopted by the PRC, for reasons which will be explained shortly. It also aids our legal position if the statements and policies of our schools are consistent.

We should also review Articles of Incorporation and bylaws to ensure that they clearly state that the primary purpose of our Christian schools is to teach all subjects in a way that incorporates our unique doctrinal positions and to incorporate our beliefs in every facet of school life. Although our schools do this in practice, we often do not directly state this in our official documents. The reason that this becomes an issue is that even many private schools do not see religion as something that must be, or even can be, included in every subject. In cases such as the Hosanna-Tabor Lutheran Church and School case, the court distinguished between teachers who taught religion classes and other teachers.5 In our Christian schools, we expect teachers to incorporate our worldview into every subject, into discipline of students, and into the example they set for the students. We expect all school employees to follow suit, whether secretaries or janitors or whatever position they may hold.

It is also helpful if our governing documents refer to the fact that the school is established so that the teachers, standing in place of the parents, continue the instruction in the same religious doctrines taught in the churches attended by the families. Some of our schools have bylaws that refer specifically to the doctrines of the Protestant Reformed Churches, and some refer to the Three Forms of Unity or other doctrinal standards. Whatever the case may be, the documents should clarify that the doctrines of the church are being carried over to the school, and that the teachers are expected to incorporate them into every subject. If the supporting churches have adopted statements of our position on these issues, this bolsters the school’s position.

The reason why it is so important that our schools clearly state this connection to the church’s doctrine is that the law recognizes a “ministerial exception,” under which the courts will not interfere with the operations of churches or similar religious organizations. As was illustrated in the Hosanna-Tabor case, the Supreme Court has been willing to extend this doctrine to teachers of religion in private schools.6 Since we require all teachers to incorporate our religious doctrines into their subjects, this exemption would arguably extend First Amendment protection to all teachers in our schools. By the same token, the courts do not interfere in the discipline or other aspects of church life because of this same concept, and our schools should be afforded the same protection because they are meant to incorporate those same religious beliefs into all of school life.

Some might worry that such an approach runs contrary to our practice of maintaining the schools as separate from the church, as parental schools rather than parochial, church-run schools. What is suggested is not a change to the structure of the school government, but rather a clarification of what already exists. Many of our schools already include language that requires that school society members or teachers be members of the Protestant Reformed Churches. This connection is sufficient for the government to consider the schools to be legally affiliated with the church. For instance, the undersigned has assisted several of our Christian schools in applying for recognition of tax-exempt status with the Internal Revenue Service. The IRS has ruled repeatedly that this affiliation with the church keeps the schools from having to file an annual Form 990, which is normally filed by exempt organizations other than churches. Even though the church does not directly govern the schools, the indirect connection is sufficient because the doctrine of the church will necessarily carry over to the school. If the church excommunicated a member, that person could not hold office or teach at the school either. Even if a school is not implicitly tied to a particular denomination, the governing documents should be reviewed to ensure that they state that the school incorporates the doctrinal beliefs of the parents into every aspect of school life and that the teachers are expected to incorporate those same doctrines into every subject.

Our school policies should be very careful to clarify that we believe our worldview affects every aspect of life, and that we expect that no students, faculty, or employees will live or teach in a way that contradicts our religious beliefs. Even with such language, it may be difficult to enforce such policies with regard to some non-teaching positions. For instance, a court in Massachusetts recently ruled that a Catholic school, Fontbonne Academy, violated an employee’s rights by denying him employment as a food service director because he listed his homosexual partner as an emergency contact. The court found that the ministerial exception did not apply because he would not be teaching religious matters.7 This is why we must be manifestly clear regarding our belief that life and doctrine are completely integrated.

Another issue that affects schools more than churches is the concept of “public accommodation.” This is the legal doctrine that facilities that are opened to public use cannot exclude certain classes of people. The idea is that if an organization allows an otherwise private facility to be used by the general public, it cannot then discriminate against any of the protected classes of individuals. As discrimination laws are expanded to include issues of sexual orientation and gender identity, we must re-evaluate our policies in regard to public use of our facilities.

Finally, in a similar vein, we must consider the language allowing students of other denominations to attend our schools. In the Fontbonne Academy case, the court noted that the Massachusetts discrimination law exempts religious organizations, but this exemption only applies to organizations that limit enrollment to members of their own religion.8 At the very least, our policies should clarify that students must adhere to our doctrinal positions.

The world around us is rapidly again becoming a place where “every man does what is right in his own eyes.” Our adherence to absolute moral standards makes us an object of derision and a target for those who resent our beliefs. Our heavenly Father has provided us means to continue to proclaim the truth for a time, and we should be diligent in using the means provided to continue to let the light of the gospel shine for as long as possible.

1 Obergefell V. Hodges, 576U.S. ___, 135 S. Ct. 2584 (2015).

2 Sample documents can be obtained from the Alliance Defending Freedom, at

3 See, for example, “A Clash of Individual Liberty,” Standard Bearer, vol. 87, 204; “Religious Discrimination in Employment,” Standard Bearer, vol. 89, 206.

4 Available at

5 Hosanna-Tabor Evangelical Lutheran Church and School, v. Equal Employment Opportunity Commission, 132 S.Ct 694 (2012).

6 Ibid.

7 Daniel James Devine, “Massachusetts Court: Catholic School Must Hire Gay Employees,” The Aquila Report, January 14, 2016.

8 Devine, “Massachusetts Court.”