Legendary Alabama civil rights attorney Henry Frohsin believes the U.S. Supreme Court decision making same-sex marriage legal is a win-win situation for conservative churches and lesbian, gay, bisexual and transgender Americans.
"It's a joyous time for civil liberties; same-sex Americans now have the right to marry the person they love," said Frohsin, who prosecuted Ku Klux Klan crimes in the 1960s and investigated police brutality as a federal prosecutor. "At the same time, the right to practice religion the way you want is protected. Churches, synagogues and mosques can refuse to allow same-sex weddings due to their religious beliefs. Pastors, priests, rabbis and imams can't be forced to officiate. But states will be required to issue a marriage license to same-sex couples who will find someone to perform a wedding."
Frohsin's Birmingham-based firm has attorneys litigating cases across Tennessee, Georgia, North Carolina and Alabama. Chattanooga attorneys Maury Nicely of Evans Harrison Hackett, PLLC, and solo practitioner Zak Newman agreed the recent ruling would not interfere with a church's right to refuse a wedding party.
But several local pastors remain concerned. Many churches here and in North Georgia are rewriting mission statements and facility use policies to include wording that the church will not host or officiate same-sex weddings because of their religious beliefs.
"First, I want to say that we have reminded our congregation to practice love toward others even if we disagree with their beliefs," New Salem Baptist Church pastor Alan Rogers said. "We are revising our mission statement, member statement, facility use policy and employment policy so anyone new to our church will clearly understand our beliefs. I wish that I could say I could always be confident in the Supreme Court's respect for religious freedom, but this decision is still so new it's hard to predict all of its implications."
Rogers was concerned that a church that refused to allow same-sex marriages on its property might find its tax-exempt status jeopardized because "the power to tax is the power to regulate."
Dr. Jeff Greer, Heritage Pointe Baptist Church education director in Ringgold, Ga., had the same worry, saying: "Our concern is that as a result of the Supreme Court's decision, with which we obviously disagree, ministers will be made to refrain from expressing our biblical beliefs on marriage and forced to perform same-sex marriages or lose their church's 501(c)(3) tax-exempt status. As a result, we are waiting for advice from the legal community regarding the steps we need to take to protect our constitutional rights."
Frohsin sees no chance the Internal Revenue Service would revoke tax-exempt status from a church for refusing same-sex weddings or voicing opposition to LGBT rights.
"That would be political suicide; historically, the federal government has been reluctant to interfere with that status," Frohsin said flatly. "The First Amendment protects a church's interpretation of Scripture."
Nicely, an expert in labor and employment law, believes it is possible that some county court clerks could keep their jobs and still refuse to issue marriage licenses to same-sex couples if that violates their religious beliefs.
"An employer is supposed to make some reasonable accommodation for an employee's religious beliefs; workers who celebrate the Sabbath on Saturday wouldn't be required to work that day, for example," Nicely said. "It's possible a clerk like that could be transferred to another job. But if the clerk refuses on that basis, the county has the obligation to find a clerk who will. The county can't just turn the couple away empty-handed. That is against the law."
Nicely did not believe churches that disagreed with the ruling would risk their tax-exempt status. He noted that many denominations do not allow women to be full pastors or priests because that would violate religious beliefs — and gender, race and physical disability all are protected classes under federal law. Sexual orientation is not.
Newman predicted the battlefield for implementing same- sex marriages would be county clerk offices, not churches or businesses. Under federal law, landlords, real estate agents and employers cannot discriminate against a member of a protected class. Under federal law, gays and lesbians can be rejected due to their sexual orientation unless the state or city has passed a law protecting them. Tennessee, Georgia and Alabama do not recognize sexual orientation as a protected class. For that reason, a wedding chapel that operates as a business in those states can legally refuse a same-sex wedding.
"The real fear I think churches here are feeling is the fear they will be pressured into tolerating behavior they find unacceptable," Newman said. "It's not really a fear rooted in what the Supreme Court decided."
Dr. Todd Gaddis, pastor of the 700-member First Baptist Church of LaFayette in Georgia, was candid when he tackled that point.
"My church overall is disappointed in the ruling but the fear is about the momentum the LGBT rights movement has now and the changes that might bring," said Gaddis, who counts gays and lesbians among his friends although he disagrees with their lifestyle.
"For Christians, marriage is a holy Scriptural word meaning union between a man and woman. We've been surprised by how quickly changes came the last few years, partly due to pop cultural attitudes. Many millennials in my congregation don't even see same-sex marriage as an issue."
"The state isn't going to order me to officiate at a gay wedding, so it isn't fair of me to interfere with the state and tell it not to issue marriage licenses," Gaddis said, then sighed and confided he had taken a two-week break from all Facebook pages due to vitriolic postings about the decision.
"Some of my congregation may say when they read this: 'Preacher, seemed like you were a little light on the court.' But same-sex couples have been subjected to hatred and violence, and I don't want to use words that would ever trigger that."
Contact staff writer Lynda Edwards at 423-757-6391 or firstname.lastname@example.org.