Jeff Agnor
BaptistLIFE recently contacted BCM/D’s attorney, Jeff Agnor, regarding the recently approved law permitting same-sex marriages in Maryland. In particular, we asked how this new law will affect churches.
What are the key points in the same sex marriage law that pastors and church leaders need to know?
On November 6, 2011, Maryland voters approved Question 6, thereby allowing the Civil Marriage Protection Act to become law on January 1, 2013. The Act allows individuals of the same sex to marry in a civil ceremony and enjoy all of the benefits of a married couple. The law, however, includes strong protections for churches and religious organizations. A pastor or other church official cannot, under any circumstances, be required to perform a marriage ceremony for same-sex couples. The Act unequivocally states that “Each religious organization, association, or society has exclusive control over its own theological doctrine, policy teachings, and beliefs regarding who may marry within that faith.”
Should churches add anything to their bylaws in response to the new law?
That would be an internal decision to be made by the individual church. There is certainly no legal requirement that a church’s governing documents contain any particular provision. That said, it may be good practical advice for a church to amend its constitution or bylaws to state that the church will only recognize a marriage between a man and a woman and that the church will not solemnize or celebrate same-sex marriages. This would be particularly important if the congregation is divided on the issue of same-sex marriage. A minister should feel he is on sound ground in refusing to marry same-sex couples if that is the church’s policy, without fear of reprisal from a faction within the church that may oppose that doctrine. Of course, any such division in the church would come to the surface in the process of approving the policy statement.
Will this law affect the renting of church facilities? Can churches choose not to rent to same-sex couples who want to use the facility for weddings or receptions?
The Civil Marriage Protection Act clearly states that churches and other religious organizations cannot be required to provide any facilities or services for the purpose of performing or celebrating same-sex marriages. In fact, this provision extends not only to churches but also to any other “religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by a religious organization, association, or society.” This would include, for example, facilities (including camps) owned by the Baptist Convention as well as the various Maryland Baptist associations and agencies. A church can refuse to allow its facilities to be used for same sex marriages even if the refusal would otherwise violate public accommodation laws. It does not matter if the church routinely rents out its facilities to secular organizations, such as scouting or school groups.
Will it affect pre-marital counseling?
Under the Act, no minister or other church official can be required to provide pre-marital counseling to same-sex couples. For the same reasons discussed earlier, it may be advisable for the church’s governing documents to make clear that premarital counseling will not be provided for same-sex couples, if that is the church’s policy.
How does this affect chaplains?
Chaplains can refuse to perform same-sex marriage ceremonies if this would be contrary to their religious beliefs. Any chaplain recognized by a religious order or body to perform marriage ceremonies would be treated the same as the minister of a church under the Act.
Would the result be different if a church had accepted state or federal funds?
A church would not be required to perform or allow its facilities to be used for same sex marriage ceremonies simply by accepting government funding. If a church accepts state or federal funds for a specific program or service “related to the promotion of marriage,” that government-funded service or program would have to be made available to same-sex couples. For example, if a church provides a marriage counseling program and accepts a state or federal grant for that program, the church would have to allow same sex spouses to participate in that program. This requirement, however, would be limited to the specific program for which the grant was received. It would not extend to any other programs, services or facilities of the church. It would also not apply to any government-funded program that is not related to “the promotion of marriage.”
Jeff Agnor is an attorney with the firm of Davis, Agnor, Rapaport & Skalny, LLC in Columbia, Md. He can be reached at (410) 995-5800 or by email at jagnor@darslaw.com