Church spires once dominated the skylines of American cities, while rural chapels served as the center of community life in small towns and villages across the country. The church enjoyed the respect of society and the esteem of the culture.

But, the world has changed.

Municipalities across America routinely attempt to zone churches out of prime locations. Sexual identity has become the watchword as secularists seek to replace religious freedom with sexual preference as a cherished American value. Members and non-members often bring litigation against churches for physical injuries sustained during church activities. And, sadly, the number one reason churches currently wind up in court is the sexual abuse of minors.

Emerging Legal Threats to Churches

In analyzing recent trends, we have identified five emerging legal threats that each church should be aware of and ready to address:

1. Sexual Identity vs. Religious Liberty

2. High-Risk Ministry Activities

3. Increasing Secularization of Culture

4. Zoning and Property Issues

5. Sexual Abuse of Minors

In the midst of such a cultural whirlwind, how should your church respond? How do you stay on mission? How can you protect your members and guests from harm?

Sexual Identity vs. Religious Liberty

The First Amendment to the United States Constitution states, “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” This amendment protects both the establishment and the free exercise of religion. However, critics seek to limit the First Amendment’s scope to beliefs alone, opposing the freedom to act on those beliefs. They argue that practicing these beliefs should be regulated by the government.

A report by the United States Commission on Civil Rights exemplifies this thinking. The report views efforts to protect religious liberty as a pretext for discrimination. Martin Castro, the commission's chairman, wrote, “The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy, or any form of intolerance . . . [R]eligion is being used as both a weapon and a shield by those seeking to deny others equality” .

Across the country, states and municipalities have added “sexual orientation” and “gender identity” to non-discrimination laws concerning education, housing, employment, and public accommodations. Violating these protections can lead to investigations, lawsuits, fines, legal fees, and orders to conduct or attend “re-education classes.”

Case Studies and Legal Precedents

For instance, Kelvin Cochran, a deacon and men’s Bible study leader at Elizabeth Baptist Church in Atlanta, and former Atlanta fire chief, made headlines when he was suspended and later fired. His offense? Publishing a book that criticized homosexuality, written on his own time. Despite a city investigation clearing him of any discrimination, he lost his job .

The United States Supreme Court's decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), held that same-sex couples have a fundamental right to marry under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. This decision invalidated state laws that excluded same-sex couples from civil marriage.

A recent case in Iowa illustrated the conflict between sexual identity and religious freedom. An Iowa Human Rights Commission brochure seemed to indicate that state law required churches to open restrooms and showers to members of the opposite sex and refrain from saying anything that would make “persons of any particular . . . gender identity” feel “unwelcome” . Fortunately, the court found that the church was not a place of public accommodation in this instance, but noted a different analysis might apply if the church was used as a polling place or rented out for commercial purposes .

Your Church and Sexual Identity

Since Obergefell, many churches have inquired whether ministers will be required to conduct same-sex weddings, if they must allow same-sex marriages, or if they risk losing tax exemptions for religious schools due to non-compliance with same-sex or transgender bathroom policies.

One answer to these questions is for the church to amend its bylaws or other governing documents to define marriage as exclusively between a man and a woman. This is a good step, but facility use and wedding policies are equally important. Churches can choose their policies based on their level of risk aversion. Some may limit facility use to members only, eliminating any argument that the church is a place of public accommodation. Others may allow facility use by other churches and organizations with like faith and practice, or continue leasing to non-religious entities that agree to abide by the church’s policies.

Your church's choice regarding updates to the constitution and bylaws, implementing a facility use policy, and other issues involving sexual identity and religious freedom should be guided by your ministry philosophies and priorities, along with the advice of an attorney familiar with these matters.

Contact Us for a Free Strategy Session

For information about how Reynolds Law Group, PLLC can help protect your church against this emerging threat, contact our team by clicking the button below.