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After Obergefell

Attorneys give pastors advice on how to navigate church life in the new era of legalized same-sex marriage.

The longtime legal counsel for the Assemblies of God and the attorney who successfully wrote the brief defending Hobby Lobby in its successful Supreme Court health care challenge, spoke about threats to religious liberties in a far-ranging panel discussion Thursday morning at the Orange County Convention Center in Orlando, Florida.

AG General Superintendent George O. Wood noted that the June Supreme Court ruling legalizing same-sex marriage  illustrates how far away the nation has strayed from its Judeo-Christian moorings.

"We have headwinds in our culture," Wood said. "The recent Supreme Court decision was a tipping point to manifest how fast in our lifetimes the culture has slipped away."

George Paul Wood, executive editor of Assemblies of God publications, as well as AG liaison for the 1st Amendment Partnership, moderated the discussion between the two Christian lawyers.

Although fallout from the decision won't be known for some time, Richard R. Hammar, legal counsel to the Assemblies of God since 1978, told ministers at the session that they wouldn't be forced to solemnize same-sex marriages. Hammar, author of Pastor, Church & Law as well as the annual Church and Clergy Tax Guide, pointed out that the 37 states that had legalized same-sex marriage before the federal mandate all had exemptions for clergy performing the rite.

However, Hammar recommended that some pastors might be on shaky ground for refusing to rent church facilities  for homosexual or lesbian weddings. Churches that don't rent out facilities to any group or individual have the lowest risk, but those that lease the sanctuary to other outside entities in an effort to raise funds could endanger the church's property-tax exemption, he said.

Joshua D. Hawley, associate professor at the University of Missouri School of Law, noted the importance of Religious Freedom Restoration Act legislation, which has been passed by 32 states. Hawley predicted a flood of religious liberties cases in the near future as a result of the Obergefell v. Hodges ruling legalizing same-sex marriage.

Hawley litigated before the U.S. Supreme Court in two of this century's most important religious freedom cases: Burwell v. Hobby Lobby Stores, the successful challenge to the Obama administration's contraceptive mandate; and Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, which determined the government has no right interfering in churches selecting ministers.

In the wake of Obergefell v. Hodges, Hawley urged Christians to engage in efforts to strengthen state laws that protect religious freedom. He anticipates same-sex marriage supporters pressing for the rite to be protected in the "government interest" in the future. Churches need additional safeguards beyond RFRA, Hawley said, because RFRA won't stop a state government that has determined that same-sex marriage must be defended as a fundamental policy.

Hawley, former editor of the Yale Law and Policy Review and former clerk to U.S. Chief Justice of the United States John G. Roberts Jr., said specific protections are needed at the federal, state, and sometimes local levels to ensure that churches retain tax-exempt status, charitable deductions, and employment practices. It's vital that people of faith be allowed to retain sincerely held religious beliefs, without penalty, in the face of laws protecting sexuality.

Hawley urged pastors to ensure that every employee hired formally agrees to explicit doctrinal and biblical statements of faith. He said if and when a local church must defend its policy against a same-sex marriage challenge, an important element would be to demonstrate that it has been consistently teaching about marriage from the Bible.

John W. Kennedy

John W. Kennedy served as news editor of AG News from its inception in 2014 until retiring in 2023. He previously spent 15 years as news editor of the Pentecostal Evangel and seven years as news editor at Christianity Today.