July 9, 2015

Protecting your church from SSM lawsuits

by Jesse Johnson

Part of stewardship is caring for what the Lord has entrusted to us. Elders and pastors have a stewardship to shepherd their people, and they also have a stewardship to protect their church’s property and resources (building, finances, etc.) from lawsuits.

When the same-sex marriage case was argued before the Supreme Court this year, the US Solicitor General, Donald Verrilli, said that if the court rules for same-sex marriage (which they did) then tax-exempt status for churches “is going to be an issue.”

With that kind of clarity, churches really have no excuse for being unorganized.

[As a side note, I’m old enough to remember when the mantra of the gay-rights movement was “don’t like gay marriage? Don’t have one!” Ha. Those were the good old days].  

So what can churches do to protect themselves?  Well, it is interesting that in God’s providence the main way churches can protect themselves is by doing things that good ecclesiology suggests anyway. In other words, many of the things we can do to protect ourselves (codifying membership, having a clear statement of faith, having standards for elders, by practicing church discipline, etc.), also serve to make our churches more spiritually mature.

In order to appreciate these steps, you first have to understand the threat and how a lawsuit would likely play out. Most churches do weddings, and many churches allow outside groups to rent/use their building. Suppose a same-sex couple calls your church and asks if you could host her wedding. You decline. You are sued for discrimination (and if you don’t think this kind of thing happens, read this).

To win their case, the couple would likely have to demonstrate a few things: that your church is open to the public, that your church lets others use your facility, and that you refused their wedding because of their sex. Even in states with religious protection laws, there is serious liability for churches under these circumstances.

Here are some practical steps that every evangelical church should follow to protect themselves from such a scenario:

Membership

Your church needs a clearly defined list of who is part of the congregation and who is not. So much of the rest of this advice hinges on having a healthy membership. If your church has an “everyone who attends is a member” policy, then it will become very difficult to defend yourself in a discrimination suit.

Statement of faith

Your church needs a clear statement of faith (or “what we teach” document) that articulates clearly three major points: 1) how your church defines sexual immorality/marriage, 2) that your elders are the leaders of the church and are the ones who interpret the statement of faith, and 3) that your church practices church discipline according to Matthew 18, 1 Corinthians 5, and Titus 3.

If your statement of faith is not clear on marriage, then it deserves an upgrade. I have heard from some pastors that they do not want to tinker with their statement of faith because it sounds like an over-reaction to a cultural trend. I have sympathy for that argument. Nevertheless, this is the issue of the day, our country’s highest attorney has warned churches that legal action is coming, and it is simply prudent to articulate what your church teaches on this issue.

Second, if your church does not describe whose job it is to interpret the statement of faith, then it open a door for ambiguity that could be exploited in a lawsuit.

Third, your church should have a policy in place to remove people from membership who live in such a way that demonstrates unrepentant sin and wanton disregard for the church’s pursuit of holiness. Basically, if a member does pursue an immoral life, there needs to be codified way to remove them from membership.

Signatures

The leadership of the church should make a good-faith effort to have the members of the congregation all on record as understanding what the church’s position is on marriage and church discipline. Obviously the most effective way to do this is by having members sign a statement that they have read the statement of faith, and that they recognize this as the church’s teaching. While not necessarily saying they agree with every jot and tittle of it, they should at least affirm that they recognize that it represents the church’s teaching.

Marriage/building use policy

Your church needs a written policy on exactly who they will allow to use their building for weddings or other events. The cleanest, easiest way to do this is to have a policy that says that building can only be reserved by members for events that further the mission of the church as described in the statement of faith. With many churches, a policy that restrictive is not feasible; in that case, the elders really should look at a risk/reward concept of how they use their building. Each time they allow groups not affiliated with the church to use the building, they are increasing their exposure to a potential lawsuit.

Which is fine—I’m not advocating that churches go into lock-down mode or anything. Of course we take risks for the sake of ministry. My point here is simply that elders should make intelligent choices about the risk they are exposing their congregation to for the sake of letting a neighborhood group use the building.

Now, the whole point of having a marriage/building policy is for your church to follow it. If you have a policy that says, for example, that in any wedding at the church either the bride or groom must be a member, then it seems like you are safe. But if you get sued, and the litigants are able to show that you often broke that policy, then the legal protection that policy affords has suddenly evaporated.

Counseling/adoption assistance policies

Your church should also have codified your policy on who you counsel, and that your pastoral counseling is in accordance with your church’s statement of faith. And if your church gives aid to parents who are adopting children, you should spell that out as well. Who qualifies? If you counsel non-members, or if you give financial aid to non-members, you possibly lose a layer of legal protection.

Employment policy

Your church should have a clear policy on who you would employ. Will you employ non-members? It is not enough to simply say that you only employ people who subscribe to your statement of faith, because you might then be in the position of having to explain how your statement of faith relates to the duties of, for example, a janitor or bookkeeper. If your church does employ non-members, you should have their job description explicitly connect their duties to the statement of faith.

Outreach/community work

If your church is involved in outreach ministries, or any ministry in the community at large (ministry that serves/targets non-members), you should have documents approved by the elders that clearly state how those ministries further the religious/faith nature of the church. This is critical for the simple reason that if your church presents itself as a typical non-profit that simply betters the community through social work, there is less of a legal defense than if all of your social work is overtly religious and tied to your church’s mission.

Legal Review

Your church should hire a lawyer skilled in this area and familiar with your own state laws to review your church operations, by-laws, and policies. Obviously this blog post does not count as legal advice, but is simply meant give elders a place to start in evaluating their policies and protections.

How this looks in practice

If a church has all of these protections in place, and a same-sex couple asks to use the church for a wedding, the issue is not about the sex of the bride and groom, but rather the issue is that the church only uses their facilities for members of the church. So far, that is a fairly locked-down approach, and it has survived court challenges already.

In fact, if churches have a firm statement of faith, membership, church discipline, and a members-only policy, then Supreme Court precedent is on their side. In Hosanna Tabor vs. EEOC (2012), the US Supreme Court ruled 9-0 that a church should have full authority to decide whom they want to hire, assuming it is in-line with their duties (in the exact case, an employee was church disciplined for threatening to sue the church, and thus lost her employment as result of losing her membership).

Towing the line with church membership is probably going to offer a church more protection than simply passing a statement about a refusal to host same-sex marriages (in fact, UCLA law professor Eugene Volokh wrote yesterday about how those kind of statements themselves may soon be treated as criminal).

And if the threat of lawsuits gets churches to take the concept of membership more seriously—well, (to quote Paul), “this was the very thing we were eager to do in the first place.”

If you are a pastor or elder, here are is a key resources for you to use: The Alliance for Defending Freedom worked with the Southern Baptist Convention to put together a 44-page booklet that walks through the above points in more detail.

Jesse Johnson

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Jesse is the Teaching Pastor at Immanuel Bible Church in Springfield, VA. He also leads The Master's Seminary Washington DC location.
  • Brian Morgan

    Brother. Thank you so much for this. Very helpful and timely.

    • Thanks Brian. Since my post last week, quite a few pastors had emailed me (or IBC) asking for this kind of info, so I thought we’d just put it here on the blog. Thanks for reading.

  • Mary

    This is a ‘must read’, ‘must do’ piece!

  • Thanks Jesse. Do you have an example of a facility use form? Or perhaps you could upload your church’s as an example?

    • I don’t Peter. But I dont’ think the form is that important compared to a policy that spells out who you allow to use your facility in a way that does not discriminate based on any protected class. IOW, if you say we let any non-gay groups use our facility, then you will most certainly lose a lawsuit. If you say “we only allow members to reserve our facility for activities that further the church’s ministry as described in our statement of faith” then you will most likely avoid being sued all together.

  • Scott Christensen

    Jesse, I looked at Immanuel’s Constitution and ByLaws (recently updated) and could not find how your church addressed these matters. Could you enlighten us?

    • In our document called “What we teach” (http://immanuelbible.net/discover/teach) we have a section on marriage and the family.
      The first sentence of that document has a link to our constitution which explains that the elders lead the church and are responsible for church discipline.
      The rest of it–employment policies, building use policies, marraige policies, etc.–are not in those documents. In fact, I don’t think they are on line at all. Rather they were adopted by elders as our policy in elders’ meetings, recorded in our minutes, and are part of the governing documents for our church.

      • Scott Christensen

        Thanks Jesse! That is helpful.

  • Johnny

    One of the advantages of attending a tiny OPC church that doesn’t have it’s own building but leases a spot each Sunday…. they don’t have to worry about things like this.

    • True dat.

      • Barbara

        JESSE, As you know, Calvary Chapel doesn’t have church membership, and rarely practices church discipline.. I see a troubling situation in this case for them..I attend a CC from necessity, high in the Sierra Nevada mountains , where expository preaching is otherwise not available and liberal, affirming churches abound.

    • Barbara

      That depends on where you lease from.If it’s another churches building, maybe not, but we here in CA rent from the local High School.. so I see trouble there, and some churches use retail or similar building during off hours, there’s pressure there to deny ” bigoted” groups that space.

  • tovlogos

    I’ve heard a lot of great statements, since the supreme court decision, expressing the biblical view of the issue — they were eloquent and supportive to many people.

    However, this post is the post for today and equally important. It is telling the church to know who you are, first of all; organize yourself so that you have ground on which to stand. “…also serve to make our churches more spiritually mature.” You have covered a lot of ground that would and does work — they will find a way to challenge the best laid plans; but we do what we must do; and God has the last word.

    Notwithstanding, today’s brazen developments are a picture perfect forecast of Revelation 13, indicating, deny God, or else.

  • george canady

    most likely the states strongest arguments will be the evidence in history of how the church has treated blacks.

    • Wut?
      I hope you mean that in a positive way, because if so, you are right. I hope that the persevering nature of common grace through the church will be the tool the Lord uses to restore marriage and end abortion–much like it was the tool the Lord used to end slavery, empower the movement to build hospitals, inspire missions, check governement corruption, protect women, and fuel literacy/education globally. If that’s what you mean, then amen.

      • george canady

        I have great respect for you through your writings and I do not pretend to know all of the difficulties you as a faithful pastor will face in the future on SSM. I expect you will be one to remain faithful and not compromise. But here I was thinking more in terms of the recent multiple recognitions, admissions and calls to repentance of leaders in the church on how we have treated blacks in the church; and this by solid leaders you know well. It seems it would be good to have a clear conscience and be prepared for the truth of our history going into this new struggle for those who can see that we the church will surely be accuse of hypocrisy on this at some point. Of course the matter is theologically complex but it is good to hear church leaders repent of our historic sin in the context of James 2: of favoritism here in our history. I think God would be please with this humble admission and repentance. Perhaps those are likely the individuals who’s voices will be empowered to be the most effective in the coming years on the church’s position on SSM not only to protect the church but also to win those who are not the church yet.

        • Sandi Lee

          Will you please share a link so I can understand what you’re referring to? I’m not aware of any recent situations where a response was that several white church leaders repented for their treatment of African Americans. What kinds of behavior were all these elders repenting for?

  • Thanks Jesse! Our elders just read the ADF article last week and are working to implement some of these policies, but your article brought to our attention some other things we need to consider as well. Question regarding counseling… you said, “If you counsel non-members, you lose a layer of legal protection.” Is that in the case that we refuse or cease counseling a homosexual couple? I’m wondering what kind of lawsuits can be brought against us for counseling non-members, even if we counsel a homosexual couple to separate. I know that it has been expressed that this SHOULD be illegal, and the APA has even declared anti-homosexual counsel as even contrary to the Nuremberg Code of Ethics. But would Nally v. Grace Community Church protect us from that? Thanks!

  • Shaun Marksbury

    Thanks, great info as always!

  • Dave O

    Great advice and this is being forwarded right now.

  • Dave O

    Great post, sharing it too.

  • 4Commencefiring4

    Suppose all church pastoral staff were made independent contractors instead of employees? Gay couple wants a wedding. Church says, “We don’t perform weddings, but here’s a list of our contracted pastors. You can call them and see if they want the gig.” Surprise! No one is available. Can’t fit you in right now. It’s their busy season. Who’d a thunk it?

    What about the facilities, or renting a room for the wedding or a reception? Well, each area of the church is under lease from the church to a pastor/contractor (for $1/yr, but that’s no one business) and no subletting–either temporary or long-term–is permitted under the terms of the lease. So a classroom or the sanctuary itself is just a pastor’s equivalent of a contractor’s tool shed. The church itself only owns the walls, ceilings, bathrooms, and hallways and leases out everything else to the pastors. The kitchen is the church’s, but who wants a wedding or reception in a kitchen?

    • Paying pastors as independent contractors is one that some churches actually do. IN fact, for many pastors who write books or who who travel a lot, it is actually easier to manage “creative property” by having this kind of arrangement. In fact, even on taxes pastors are considered “self-employed” for purposes of social security. So there could be a lot of positive things that could come to a pastor if he just did a 1099 instead of a W-2.
      But here is what would be lost: housing allowance, manse tax status, health insurance, retirement, and other benefits. Conference expenses, etc.
      With the Afordable Care Act (aka: #SCOTUS care), it might make sense for more pastors to go that way. Their church could just roll what they pay for insurance into their take-home pay. But the downside is (at least in VA) that getting insurance through ACA is increasing cost by like 40% next year with a $1,000 deductible. This is a really long answer to just get to this point: it would likely reduce the pastor’s take home pay significantly, and thus increase the amount of money the church spends on taxes (through the pastor) if they made that switch.

  • Sue

    Was just referred to this site. What a great resource for the church today! Wow what scary yet exciting times! I just know that God is sovereign and is not surprised by any of this, nor should we be, but being prepared and aligned Biblically is always a good thing. AMEN?!

  • Jacqueline Jackyeo Owens

    Excellent article Jesse.

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