On June 26, 2015 the United States Supreme Court ended the national debate over same sex marriage in its 5 – 4 decision in Obergefell v. Hodges. The majority opinion authored by Justice Anthony Kennedy, found that states which prohibit marriage to same sex couples deprive them of their liberty, contrary to the Fourteenth Amendment of the United States Constitution. The Court ordered that all States recognize and sanction marriages between same sex couples “on the same terms and conditions as marriages between persons of the opposite sex.”
The case has generated legal, moral, and religious controversy. Many Maryland churches are questioning what impact the decision will have on them: Will they be required to perform same sex marriages? Will a religious stand against same sex marriage subject them to liability? Are there legal steps that can be taken which protect a church from a legal challenge on the issue?
In 1973, Maryland became the first State in America to expressly define marriage as a union between a man and woman. In 2012, the General Assembly passed, and Governor O’Malley signed, the “Religious Freedom and Civil Marriage Protection Act.” The bill legalized same sex marriage, and also contained explicit protections for religious leaders and institutions. Specifically, “an official of a religious institution or body authorized to solemnize marriages may not be required to solemnize any marriage in violation of the right to free exercise of religion guaranteed by the First Amendment to the United States Constitution and by the Maryland Declaration of Rights.”
Further, Maryland statutory law protects a church against having to provide services, accommodations, advantages, facilities, goods or services related to the solemnization of a marriage or the celebration of a marriage that is in violation to the Church’s religious beliefs.
There is nothing in the Supreme Court decision that changes Maryland law. The opinion of Justice Kennedy contained express protections for religious freedom:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere convictions that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.
Those churches that choose to perform same sex marriages can continue to do so. The Supreme Court decision will have no impact of their practice.
Likewise, those churches that will not perform same sex marriages need not compromise their beliefs nor change their practices. Maryland still maintains the strongest protections for church liberty and immunity in the nation. The laws as they now stand do not present a threat that a church will be obligated to perform, sanction, or recognize same sex marriages that are contrary to their religious beliefs.
This being said, many churches seek to put themselves in the strongest possible position under the law, so as to assure their freedom as much as possible. Our firm has a long history in representing churches, and we have since 2012, recommended that church can add to their formal records a clear statement of its position as a matter of religious belief which would track the language of the express protections in Maryland law. Specific language should be tailored to each church’s existing governing documents, to ground its position as a matter of faith and religious practice. Doing so will forestall any possible challenge and allow each Church to honor its conscience and the tenants of its religious convictions.