As the U.S. Supreme Court justices deliberate over arguments regarding same-sex marriage, many Christians worry about the possible effects of the high court’s decision on their congregations. Some wonder, “If same-sex marriage becomes a 14th Amendment right, what will happen if we refuse to allow ceremonies or other services in our church facility that celebrate homosexual unions? Can churches be successfully sued like Washington florist Baronelle Stutzmann when she declined her services to a homosexual couple for their wedding?”
Furthermore, recent media attention on an instance of church discipline at The Village Church in Texas led Jonathan Merritt, senior columnist for Religion News Service, to ask whether public displays of alleged “shame” and the open discussion of personal information merit any legal action against the church.
Christiana Holcomb, litigation counsel for the Alliance Defending Freedom (ADF), said churches that do not have specific and clear policies leave “gray areas that can be exploited.”
The rapidly changing culture in America is placing an increasing amount of scrutiny on church policies, especially policies about membership, employment and facility use.
If the Supreme Court were to rule in favor of same-sex marriage, Holcomb said, “I think we’ll see an immediate increase in the number of lawsuits against churches in all areas.”
Christiana Holcomb, litigation counsel for the Alliance Defending Freedom, said churches that do not have specific and clear policies leave “gray areas that can be exploited.”
“Churches that do not have clear membership policies,” said Holcomb, “are more vulnerable to lawsuits.”
Brian Davis, associate executive director-treasurer of the Baptist State Convention of North Carolina, added that courts might become involved any time a member is denied a specific right – like the denial of congregational voting privileges in church discipline – especially if the process deviates from a church’s standard practice or written procedures.
Churches could also be open to defamation charges if a public church discipline case conveys false information about someone or publicizes private information without prior, informed consent.
“Informed consent” is a key factor in membership and church discipline issues, according to Peacemaker Ministries, a non-denominational organization dedicated to helping churches resolve conflict. The organization states on its website, “one of the most effective defenses to any lawsuit is informed consent.” Statements of faith or membership covenants that detail church discipline policies, to which all members sign their agreement, are common ways of establishing informed consent.
It can be more difficult for a church without written discipline procedures to establish informed consent, but not impossible, according to Peacemaker. “Implied informed consent” may be obtained “by communicating with attenders to ensure that they understand that [relational commitments] will apply to them if they continue to attend your church.”
Churches are also vulnerable to litigation if they attempt to hold their employees to a biblical sexual ethic yet do not have clear employment policies, said Holcomb.
Churches are free to hire and fire as they see fit, Davis said, but they must follow their stated policies and procedures for doing so.
Additionally, some personnel policies apply to ordained ministers that do not apply to other, non-ordained staff members. When churches do not carefully follow and apply their policies, they could be in danger.
The use of church-owned facilities is another area of potential vulnerability. When churches allow non-members or other organizations to use their facilities, they make themselves open to “allegations that they are a public accommodation, which would make them subject to certain non-discrimination laws,” Holcomb said.
Brian Davis, associate executive director-treasurer of the Baptist State Convention of North Carolina.
To date, no court has ever considered a church facility to be a public accommodation. “However,” she added, “I’m anticipating that there will be some test-cases in the very near future alleging that a church that allows outside organizations to use its facility has thereby turned itself into a public accommodation.”
Davis named two other areas where churches can be susceptible to legal action: business transactions and negligence.
Churches may conduct business transactions like buying and selling property or incurring debt, but – as with other practices – they must do so without deviating from what is stated in their governing documents, said Davis.
He added that churches could be held liable if someone is injured on church property due to negligent maintenance or safety practices.
“There’s really no bright line or silver bullet with any of this,” said Holcomb. “So, it’s not to say that a church that fails to clearly define its policies has no religious protection.”
Clearly defining policies, and practicing them, simply puts the church into a stronger legal position, she added. “… as an attorney that’s the position that I want to see churches in.”
Updated policies help protect churches
Holcomb named four key things churches can do to help protect themselves from possible lawsuits.
Churches should create or update their statement of faith. An ADF legal guide also suggests including a declaration about final authority on matters not specifically addressed in the statement of faith. Policies about marriage (and other religious services, like funerals) should also be tied to the statement of faith. Be clear about “marriages that pastors can or cannot officiate,” Holcomb said.
Religious employment criteria should be established as well. “Churches are often very lax about having any written employment policies,” Holcomb said. “Even the ones that they do have commonly only list physical duties entailed by the position. I want to see them take it a step further. Talk about the spiritual duties of the position. How does this particular position further the church’s mission and message?”
Create a facility-use policy. Holcomb expressed concern that churches might exclude non-members and outside organizations from using their facilities due to increased risk of lawsuit. Don’t stop allowing others to use the facility, she said. Rather, have a detailed policy that clearly states the facilities are privately owned and to be used in ways consistent with the church’s faith.
A church “increases its religious liberty protection” when it has a formal membership policy, said Holcomb. Such policies should outline procedures for initiating and revoking membership, along with church discipline practices.
Taking the first steps
Holcomb answered the question, “What first steps can churches take toward protecting themselves?” by suggesting the appointment of a committee made up of key church leaders that can assess the church’s governing documents.
ADF and the Ethics and Religious Liberty Commission provide resources, like a freely available legal guide called “Protecting Your Ministry,” to help churches assess and update governing documents.
Davis warned against taking documents and policies from one church and dropping them into another. It can create more problems, he said.
Instead, Davis suggested looking for omissions or gaps in the church documents where important issues should be addressed. Then begin to fill those gaps without creating contradictions, he said.
Davis also suggested inviting an “outside set of eyes,” like associational missionaries or state convention resources.
There’s an order of priority in governing church documents, said Davis. “We believe the scriptures are our governing documents, but when we start dealing with legal matters, the courts are looking for a constitution, bylaws and policies/procedures.” The constitution (or charter) of a church is usually the first thing a court considers, then bylaws, then day-to-day policies and procedures, according to Davis, though he said his words should not be taken as legal advice.
“Where [a policy] appears, that’s where it’s binding,” he said. The problem comes when churches have a policy that’s scattered across multiple documents, “Which one rules the day? … especially if there’s a contradiction.”
“Consistency is your friend,” Davis added. Policies must be stated clearly in governing documents, they must not contradict other policies in the governing documents and they must be followed consistently.
Holcomb referenced the checklists and sample documents in the ADF legal guide as resources to help churches update policies.
“Even though it may seem like a long and onerous process,” she said, “I think it’s a healthy process for the church to go through – to really grapple with these issues.”
Davis encouraged churches to approach the process not as merely updating policies, but as becoming an organized and prepared disciple-making unit. He offered a guiding question: “How does this help us fulfill the Great Commission?
“If we’ll keep that in mind, it will go a long way toward making sure that we have language in place that’s gospel-centered, that’s Christ-focused, that helps us to engage people with the gospel.”
(EDITOR’S NOTE – Seth Brown is the content editor for the Biblical Recorder, news journal of the Baptist State Convention of North Carolina. If your church has been involved in a lawsuit related to any of the issues outlined above, email [email protected] to tell us your story.)