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Defending Your Church in a Hostile Environment – Part 1

Posted by Ted Hoppe | Oct 14, 2016 | 0 Comments

On September 17, 2016 I had the privilege of being part of a symposium held at the National Constitution Center and sponsored by First Amendment Voice as part of the celebration of Constitution Day. This happened to be the 229th Anniversary of the final signing of the Constitution. I was part of a panel and the topic that I spoke on was Defending Your Church in a Hostile Environment.

What is the Threat?

Think about this – What would happen at your church if you or the Pastor of your church:

  • received a phone call from a same-sex couple wanting to use your church sanctuary for a same-sex wedding. After the Supreme Court's same-sex marriage decision, does this couple have a legal right to use your church building?
  • Or received the devastating news that a trusted member of your pastoral staff is engaged in a homosexual relationship contrary to church teachings. If he remains unrepentant, and the church removes him from his pastoral employment position, could your church be liable for employment discrimination?
  • encountered a man visiting your church in a dress, lipstick, and high heels. And he wants to use your women's restroom. Are you legally required to allow him?
    These are real issues facing churches today. Issues that many churches are not prepared to deal with, but which they must be.

Much attention was paid this summer to the Supreme Court's Same-Sex Marriage decision in Obergfell v. Hodges. However, the greatest threat to church ministry existed before this decision in the nature of sexual orientation, gender identity laws (SOGI). SOGI's make it illegal to treat people differently or discriminate on the basis of sexual orientation or gender identity.

What Are the Effects of SOGIs?

(1) public places

SOGIs affect businesses that are open to the public or that serve the public in any way (public accommodations). For some examples of businesses affected by SOGIs see:

Barronelle Stutzman – Arlene's Flowers

Donald & Evelyn Knapp – Hitching Post Wedding Chapel

(2) Employment

Nondiscrimination laws tell employers what criteria they may not legally use in making hiring and firing or promotion decisions. When you add a SOGI to these employment nondiscrimination laws, you infringe on the freedom of religious organizations to employ only those persons who best advance their mission and message.

Holy Family Catholic Community in Inverness, Illinois

(3) Privacy/safety

SOGIs (specifically, adding “gender identity” to nondiscrimination laws) have inserted confusion into an entire area of the law surrounding gender-segregated public facilities.

What does it mean in practical terms to prohibit businesses and public places from treating people differently based on gender identity? In jurisdictions with SOGI laws, women and girls will share public restrooms, shower facilities, and locker rooms with biological men who “identify” as women. This makes it easier for sexual predators to access their victims:

  • A man in Washington state used a SOGI to gain access to the women's swimming pool locker room and expose himself to girls as young as six years old – local officials said the man had every right under the SOGI to be there.
  • In Toronto, a dangerous sexual predator used a SOGI to gain access to women's shelters where he sexually assaulted two different women.
    Banning businesses and public places from making common-sense distinctions among men and women based on gender identity opened the door to both of these atrocities.

The attacks that we are seeing on faith based organizations are progressive and have begun on faith based businesses. It will not be long before the attacks move on to Christian ministries (schools, pregnancy centers, counseling centers, faith-based homeless shelters) and then to churches. If you think that churches will never be faced with having to comply with SOGIs:

  • This summer, the Iowa Civil Rights Commission issued a brochure that indicated that the Commission was preparing to extend SOGI protections to religious institutions (churchs) for activities that the Commission determined were not religious in nature. This could allow the Commission to censure teachings and force the church to open its restrooms and facilities to members of the opposite sex.
  • In September, the Massachusetts Commission Against Discrimination issued a gender identity regulations which would apply the state's SOGI law to Churches that hold ”secular” events open to the public events. What is “secular will apparently be determined by the Commission.

These threats are real and happening. Even though these Public Accommodation laws make reference to churches, there is no reason to believe they will be limited to churches. Rather all religious organizations, whether they are Christian, Jewish Muslim, etc. are at risk by these laws which seek to intrude and restrict as much as possible religious liberty and worship.

Under current law, churches are exempt from SOGI laws because they are still considered private places. However, as I mentioned, at least 2 states interpret their SOGI laws to apply to churches in some instances. Churches still enjoy robust First Amendment religious liberty protection, especially as it pertains to internal governance and doctrine. We cannot assume, however, that those protections will stand indefinitely. Churches need to act now to strengthen their religious liberty protections and to protect their freedom to operate according to their faith.

In Part-2 of this Blog Post I will talk about what a church can do to protect itself.

Note – Some of the material for this post was taken from a presentation given by the Alliance Defending Freedom.

About the Author

Ted Hoppe

Hi, my name is Ted Hoppe and I have been an attorney in Pennsylvania for more than 25 years. In my practice, I focus on helping businesses and families with legal issues that affect them. Because I am knowledgeable and experienced on a variety of legal matters, I have built many long-term relatio...

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