SIDEBAR: Legal Answers for Sexual Issues in the Church

by Richard R. Hammar

Legal Answers for Sexual Issues in the Church

Can the church discriminate in employment decisions on the basis of sexual orientation?

No federal law currently bars churches from discriminating in employment decisions on the basis of sexual orientation. Several states and municipalities have enacted such laws, but most contain an exemption for at least some religious organizations. It is important for church leaders to understand the application of state and local law to such decisions.

Churches certainly have a constitutional right to discriminate on the basis of sexual orientation in employment decisions involving ministers. A number of courts have reached this conclusion. But the constitutional protection is not as clear for nonminister employees.

The bottom line is that churches should not discriminate against current or prospective employees on the basis of sexual orientation without first consulting with legal counsel.

Can the church dismiss a female employee who is guilty of premarital or extramarital sexual relationships, but only warn or reprimand a male employee guilty of the same behavior?

Many churches are subject to federal or state laws barring discrimination in employment decisions on the basis of gender. These laws require employers to treat woman the same as male employees in employment decisions.

Many courts have concluded that churches have a legal right to require their employees to conform to the church’s moral standards so long as these standards are applied equally regardless of gender. Women who are treated less favorably then men in comparable situations may have a viable claim of sex discrimination.

With respect to hate crimes and religious expression, can a pastor quote Bible verses that condemn homosexuality? What if the condemnation causes a member or attendee to suffer emotional distress due to the content of the sermon?

No law forbids pastors to quote Bible passages that condemn homosexuality. In 2009, Congress enacted the Matthew Shepard and James Byrd Hate Crimes Act as part of the National Defense Authorization Act. This legislation makes it a federal crime to “willfully cause bodily injury to any person … or attempt to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person.” Persons who violate this law may be imprisoned for up to 10 years, and may be assessed a monetary fine. Stricter penalties, including the death penalty, apply if death results from an offense.

The Act defines “bodily injury” to mean a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of the function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary. However, the Act adds that bodily injury “does not include solely emotional or psychological harm to the victim.” As a result, the fact a pastor’s sermon on homosexuality causes a homosexual to experience emotional distress does not amount to a violation of the Act.

Can religious denominations still define marriage as a union between a man and a woman when some state laws define it otherwise?

Yes. The very courts that have recognized a constitutional right on the part of same-sex couples to marry have stressed that religious organizations remain free to define marriage however they wish. To illustrate, one state supreme court, in a ruling affirming the legal right of same-sex couples to marry, observed: “Affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.”

RICHARD R. HAMMAR, LL.M, CPA, is legal counsel for The General Council of the Assemblies of God.