By Bob Smietana
UPDATE: Last year, an Ohio law professor said the U.S. Supreme Court needed to address whether pastors had to perform same-sex weddings, even if they held religious objections.
In the recent Masterpiece Cakes decision, the court did just that—and the answer is no.
“When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion,” the court said in its ruling.
“This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth.”
Ohio State law professor Marc Spindelman raised the question in hearings before the Ohio legislature about House Bill 36—also known as the “Pastor Protection Act.”
The bill is one of seven nationwide that address whether pastors and churches have to take part in same sex-weddings—even if they have objections.
Spindelman argued that the Supreme Court—not the state—had to decide the issue.
Lawmakers in Ohio disagreed, and last week, the Ohio House of Representatives passed the bill.
A law professor in Ohio argues that pastors might have to perform same-sex weddings for anyone who asks—even if they object.
It’s up to the U.S. Supreme Court to decide, says Marc Spindelman, a law professor at Ohio State University.
Testifying last year before the Ohio state legislature, Spindelman said the Supreme Court’s ruling on same-sex marriage could “expose clergy to some liability.”
And the high court—not states—has the authority to decide whether the First Amendment protects clergy when it comes to weddings.
“Those protections must await a ruling by the U.S. Supreme Court announcing that the federal Constitution both recognizes a right to marriage that protects same-sex couples and that accommodates the rights of clergy to refuse to take part in them,” said Spindelman.
He testified last year in hearings before the Ohio state legislature about House Bill 36—also known as the “Pastor Protection Act.” Spindelman argued the bill was unconstitutional.
Because pastors can perform civil marriages, he said, they can’t discriminate.
“H.B. 36’s creation of both permission and immunities for the clergy to choose not to solemnize marriages they are otherwise empowered to perform is by practical effect an authorization for discrimination on religious grounds,” he said.
Last week the Ohio House of Representatives passed the bill, which makes it clear pastors and churches can turn down same-sex weddings if they wish.
Under the bill, ministers and “religious societies” can opt out of hosting a wedding or solemnizing any marriage that violates their sincerely held religious beliefs.
The bill, approved 61-29, now heads to the Ohio state senate. It’s one of seven similar bills nationwide.
Bills in Missouri, New Jersey, Louisiana, and West Virginia also would allow clergy or churches to turn down weddings. A bill in Iowa lets religious groups place faith-based restrictions on the use of their property. Other bills say religious groups can’t be required to be involved with a wedding to which they object.
Republican Rep. Nino Vitale, who sponsored the Ohio bill, said it was a response to nondiscrimination laws passed in several Ohio cities.
Those laws could affect churches, he believes. So the bill was necessary, said Vitale in a statement.
“This bill was crafted in a very specific way to be a shield, not a sword,” he said.
A 2016 Lifeway Research study found only 11 percent of Protestant pastors say they’ve been asked to perform a same-sex wedding.
According to the Dayton Daily News, about 70 pastors and church groups testified in support of the bill. One of them was Brian Kershaw of East Dayton Baptist Church, who told the Daily News the bill protects “the convictional voices of pastors.”
Equality Ohio, which advocates LGBT rights, agrees pastors should not have to marry a couple if they have religious objections.
“The problem with the bill is not that clergy can choose not to marry someone if it goes against their faith,” Equality said in a statement. “They currently have, and should have, that right.”
But the group argues the bill goes too far. If a religious organization rents out its space, then it should serve everyone, it says. Equality Ohio fears the current version of the bill would allow a religious group to turn down interfaith couples and interracial couples, along with same-sex couples.
“Property and services rented to the public at large must be available to all, regardless of race, sex, religion, and other protected characteristics,” Equality said in a statement.
Churches and risk
In at least one other state, a court ruled a religious group—the Ocean Grove Camp Meeting Association in New Jersey—violated the law when it turned down a same-sex couple’s request to hold a wedding on its property.
Churches face some risk if they allow outside groups—including wedding parties—to rent their facilities, according to a guide to facility use from Brotherhood Mutual, a major church insurance company.
“If a ministry rents its meeting hall, auditorium, gymnasium, etc., to the public for a fee, courts are more likely to require the organization to rent the facility to all who seek to reserve it,” says Brotherhood Mutual.
If a church rents its facilities, having a written statement of belief and a facilities use agreement can be essential. And before renting a facility to an outside group, think through whether that rental fits the church’s mission, say legal experts.
- Study Explores Pastors’ Views on LGBT and the Church
- How to Avoid Building Related Headaches
- Why This Christian Group Wants to End Marriage Licenses
- Church Sued for $2.3 Million Over LGBT Event
BOB SMIETANA (@BobSmietana) is senior writer at Facts & Trends.