PROTECTING YOUR CHURCH S RIGHT TO RELIGIOUS EXPRESSION. Frank Sommerville, JD, CPA

PROTECTING YOUR CHURCH S RIGHT TO RELIGIOUS EXPRESSION Frank Sommerville, JD, CPA fsommerville@nonprofitattorney.com Since the beginning of the United States marriage has always been subject to detailed rules. Religious organizations treated weddings as a religious ceremony, defining marriage rules by their theology. Since the state government cannot force every citizen to participate in a religious wedding ceremony presided over by a religious official, states created alternative wedding rules that were religiously neutral. The states allowed wedding ceremonies to the presided over by a civil official, usually a judge or justice of the peace. Weddings also create marriages. The states created rules for making and dissolving marriages. These rules are also independent from any religiously based rules for making and dissolving marriages. Since marriage was a fundamental building block for society, federal, state and local governments created incentives for its citizens to marry. The two wedding and marriage systems (religious and state) co-existed for the first 200 years the United States existed. The systems were compatible because the state recognized that the religious rules did not apply to them and the religious community agreed to comply with the state rules that did not conflict with their sincerely held religious beliefs. The systems began diverging in 1966 when California adopted the first no fault divorce. The state would no longer follow the religious community rules for divorce. While some religious communities refused to recognize divorces based on the no fault rules, most religious communities accepted divorces granted by the state. The next major divergence of the two systems occurred June 2015. The United States Supreme Court determined that states could no longer define marriage as one man and one woman because it deprived certain individuals of the incentives created to reward married individuals. The old system violated the equal protection clause in the United States Constitution because it deprived individuals of the marriage incentives unless the marriage was a heterosexual marriage. The Supreme Court decision requires all government agencies to recognize same-sex marriages on the same basis as it has recognized heterosexual marriages. The result is that participants in same-sex marriages must receive the same treatment and benefits as a heterosexual marriage when it comes to the government. The United States Supreme Court decision did not address the religious aspects of weddings and marriages. The Court left those issues to another day. Some churches have incorrectly interpreted the Supreme Court decision as requiring the church to treat same-sex weddings and marriages the same as it treats heterosexual weddings and marriages. While some churches have embraced the Supreme Court decision and have altered 1 P a g e

their policies and procedures to authorize same-sex marriage, many churches have sought guidance on how to best protect themselves from the government imposing same-sex weddings and marriages upon them. This webinar concentrates on those churches who are seeking to reduce the risks associated with their refusal to participate in same-sex weddings and recognize same-sex marriages. The church may also have exposure in two areas: facilities use and employment. Some states have passed religious freedom laws that protect churches and ministers from any adverse state action because they refuse to participate in same-sex marriage ceremonies. These statutes are being challenged as unconstitutional. Facilities Use Many churches strive to be center of their community s activities. They take pride that they host a wide variety of groups in their facilities. In some communities, the church has the largest gathering space in the entire community. In many instances, the local government or school district is a frequent user of church facilities. This philosophy may create issues for the church. Some states and local governments have passed a law that prevents unlawful discrimination by facilities that are open to the public. Some of these laws include sexual orientation and sexual perception as classes of individuals protected from discrimination. These statutes are used against Christian business owners who refuse their services to same-sex weddings. If the church rents its facilities to a government entity, the church cannot have any say in how the government entity uses the church s facilities. For example, if the church agreed to rent its facilities to the county and the county uses the facilities for the justice of the peace office, the church cannot object when that justice of the peace performs a same-sex wedding in the leased facilities. While many of these public accommodation laws provide an exemption for churches, the issue is whether the extensive public use of the facilities has converted the church facilities into public use facilities covered by these statutes. In some states, the state has made the property tax exemption contingent upon the church being the exclusive user of the facilities. If the church allows nonmembers to use the church for a wedding, then the church would lose its property tax exemption. Every church should consider adopting a facilities use agreement that limits the use of facilities to members and ministries associated with the church. 2 P a g e

Employment Subsequent to the Supreme Court decision, the Equal Employment Opportunity Commission ( EEOC ) announced that it considered discrimination on the basis of sexual orientation, sexual perception and same-sex marriage to be unlawful under Title VII (nondiscrimination in employment). The EEOC believes that gender discrimination includes sexual orientation and sexual perception. It also believes that marital status discrimination includes same-sex marriages. It has begun to litigate cases addressing this issue. Most churches are subject to Title VII except churches may discriminate on the basis of religion. Further, ministerial employees are not subject to any of the federal employment laws. For non-ministerial employees, nothing in Title VII allows the church to discriminate on the basis of sexual orientation, sexual perception or same-sex marriage in its employment practices. The church may not ask an applicant about their sexual orientation or marital status. Defensive Measures 1. Establish the church s position through a statement of faith that addresses sexual orientation, sexual perception and same-sex marriage. 2. The statement of faith should become part of the churches governing documents. The statement of faith should typically be included in the bylaws. 3. Establish that the church consistently adheres to its statement of faith. 4. Establish that the church consistently refuses to allow its facilities to be used for any purposes that violate statement of faith. 5. Establish that the church consistently refuses to allow its ministers to participate in or conduct wedding ceremonies that violate statement of faith. 6. Adopt a written facilities use policy and require all nongovernmental users to agree with the statement of faith and will not use the facilities in any manner that violates the statement of faith. The policy should also limit the number and frequency of outside users. 7. Require all applicants for employment to agree with the statement of faith before they can submit an application. 8. Require all non-ministerial employees to a re-affirm their agreement with the statement of faith annually. 3 P a g e

Statement on Marriage and Sexuality (for Bylaws and Statement of Faith) We believe that God has ordained marriage and defined it as the covenant relationship between a man and a woman, and therefore we will only recognize marriage is between one biological man and one biological woman. Genesis 1:27-28, Genesis 2:18-24, Matthew 19:4-9, Mark 10:5-9, Ephesians 5:31-33. Marriage Policy Addition Since God has ordained marriage and we believe it is a covenant relationship with a man and a woman, we will only recognize marriages that are between one biological man and one biological woman. The ministers and staff of our church shall only participate in weddings and solemnize marriages between one man and one woman, and the facilities of property of the church shall only host weddings between one man and one woman. Sample Member Covenant By signing the church membership covenant, I am signifying that I agree with the Statement of Faith, including the Statement on Marriage and Sexuality. Employment Application Addition By submitting this application, I am representing to the Church that I agree with the church s Statement of Faith and Statement on Marriage and Sexuality. I am also representing to the Church that my lifestyle on a 24 hour and seven day week basis will be consistent with both those statements. If at any time my lifestyle fails to live up to those requirements, I understand that I can be disciplined, including termination of employment. Addition to Code of Conduct for Employees As an employee of the Church, I acknowledge that the church basis its teachings and guidelines for living and working on the Bible. The church expects each employee s conduct will be in line with the moral spiritual and ethical teachings of the church as well as its Statement of Faith and Statement on Marriage and Sexuality on a 24 hour and 7 day basis. If the employee s conduct is inconsistent with the standards, the church may discipline the employee in any way, up to and including termination of employment. 4 P a g e

ABC Church Facilities Use Policy Call Church Office for a Reservation/Appointment: XXX-XXX-XXXX Parking: Approximately 150 parking spaces are available in the church parking lot. Keys: Keys will be issued to one representative of a reserving group and must be returned within two (2) business days following the event. Statement of Policy: ABC Church (ABC) has been blessed with a wonderful facility to carry out the mission of the church. Therefore, proper use must be made of the facilities to ensure that: Adequate facilities are preserved to carry out our church mission, ministry, objectives, and goals. Users exercise proper care and safety while using the facility. ABC facilities are properly protected against loss or misuse. ABC guests feel welcome. Wise stewardship is expressed through energy conservation, cost reductions and safety measures. ABC guests follow the guidelines contained in this agreement. The life of ABC facilities is extended through a caring use of our facilities and a proper maintenance program. We require our guests to assist our church family by being good stewards of ABC facilities, following ABC guidelines and treating our church home as you would yours. General Guidelines for Use of Facilities 1. Goals: ABC Church is maintained by its members and friends to serve the congregation and its members. Members who desire a church setting, and who will use the facilities in accordance with the church's beliefs and good taste are welcome to use the church and its facilities in accord with the Facility Use Policy. See Use of Church Facilities Application for facilities that ABC can provide. ABC Church - Facilities Use Policy Page 2

2. Criteria To Determine Facility Use: PRIORITY OF USE A. The day to day decisions of allowing use of the facilities will be made by the office staff in accordance with the Facility Use Policy and fee schedules recommended by the Property Committee and approved by Board of Directors. Should any concerns/conditions arise that are not covered by the guidelines or fee schedules, the Property Committee shall be consulted. Exception: the ABC pastors or Property Committee Chair may be consulted should an immediate issue/concern/condition need to be resolved. B. Interpretation of guidelines and updating the guidelines shall be the duty of the Property Committee. C. Board of Directors shall approve all changes to the Facility Use Policy. Reservations are made in the following order of priority: 1. ABC functions/activities and groups with contractual obligations (e.g., Sunday Worship, ABC Board of Directors/committee meetings, Day Care) 2. Groups chartered/sponsored by ABC (e.g., BSA Troop, Cub Scouts, Girl Scouts, Brownies including their local scouts youth participation events) or use of ABC s facilities as a public election polling site. 3. Outside groups that closely align with ABC s mission and sign ABC's statement of faith (e.g. Al-Anon, Beyond Divorce, etc.) 4. ABC member family event (e.g., wedding, funeral, etc.). Facility Eligibility Guidelines: The facilities and equipment of ABC exist for the primary purpose of serving God through ABC s organizations and ministries. Any event directly connected to the life and ministry of the church will be given preference (e.g., funeral, emergency personnel meeting, etc.), even if another event had been previously scheduled for that same day and time. ABC will make every effort to accommodate all scheduled events, but some flexibility in room assignment may be required. ABC is not in the rental business; the fee requested is intended to defray ABC s costs including utilities, building maintenance, custodial requirements, etc. 1. Facilities are not available for any for-profit group or organization. 2. Organizations engaged in partisan political campaigns are not eligible to use church facilities. ABC Church - Facilities Use Policy Page 3

3. Facilities are not available to anyone, including members, who refused to use the facilities in agreement with ABC's statement of faith. 4. All requests for use of the facilities must be scheduled through the church office with the requesting person or representative appearing before an office staff member with a Use of Church Facilities Application completed at that time. ABC reserves the right to ask for proof of proper I.D. A. Groups that have been issued a key must understand that having a church key does not permit unrestricted use of ABC facilities. Use of and access to rooms/facilities other than those assigned (includes copier, electronic equipment, etc.) are required to have PRIOR office approval. B. All group meetings must be coordinated with the church office and the church calendar to avoid overbooking. C. Facility use is only for specified time as stated in the application. D. ABC understands that groups occasionally find that the room reserved for them is no longer suitable. Office approval is required PRIOR to using a different room. E. The ABC office must have accurate contact information for two (2) members of your group (a primary and a secondary). It is the group s/organization s responsibility to see that ABC has accurate information. 5. A Use of Church Facilities Application should be completed at least (2) two weeks in advance of the activity for all persons or groups requesting ABC use. The Use of Church Facilities Application provides information for every area of the church that is available for use/reservation. All facilities, set-up and tear down, and other service needs (e.g. food, sound, equipment, etc.) must be identified. All fees are due at the time of filing a Use of Church Facilities Application form including fee(s) in order for the event to be confirmed and placed on the church calendar. NO APPLICATIONS WILL BE TAKEN OVER THE PHONE. A. The fees associated with the use of ABC facilities are outlined in the Fee Schedule and shown on the Use of Church Facilities Application. In the case of organizations using ABC facilities on an ongoing basis, a separate reservation/contract may be negotiated and may include special conditions and requirements as deemed necessary and appropriate. B. If your group has reserved space but decides not to utilize the space, you are responsible for notifying the church office of this change. We ask this for the following reasons: ABC Church - Facilities Use Policy Page 4

i ii This will allow us to book the room for another event or group. ABC will know what to tell people if inquiries are received. 6. Any requests for refunds must be in writing and are subject to the discretion of Board of Directors. 7. ABC may be used as a polling place for public elections. 8. All outside groups or persons requesting use of ABC must adhere to ABC s child protection guidelines viewable on ABC s web-site. 9. The Sanctuary and other ABC facilities may be used for weddings or funerals only with the permission and approval of one of the pastors. An ABC Pastor must participate in the wedding. (See Wedding or Funeral Policies for additional information.). Set Up, Tear Down, and Equipment: The custodian will be responsible for the movement of all church equipment and property when necessary, and shall see that it is properly placed for the uses designated. Assistance provided by representatives of the user group/organization is welcome contingent on prior custodian approval. 1. Arrangements for this service shall be made on the Use of Church Facilities Application. 2. Custodial set-up, tear-down and clean-up fees will be determined on a case-bycase basis. Groups that do not require these services will not be charged. However, if the custodian has to tear-down or clean-up after an event, a custodial fee of $30/hr will be charged. 3. NO church property (i.e., audio/visual equipment, tables, chairs, coffee pots, coolers, easels, etc.) may be removed from ABC property at any time. 4. ABC has a no storage policy. The only exception is for items brought into ABC intended to be stored short term (24-hours maximum per room per day) at ABC. This exception for short term storage requires PRIOR approval by the office staff and is subject to Property Committee approval. Any other exceptions are subject to prior approval of the Property Committee and must be sanctioned by Board of Directors. 5. ABC equipment (e.g., pianos, A/V equipment, etc.) are not to be moved unless PRIOR approval has been granted by office staff. 6. Should the use of the organ, piano, or other instruments be required, PRIOR approval from one of the church organists must be obtained. ABC Church - Facilities Use Policy Page 5

Use of Kitchen: The primary use of the kitchen facility will be for ABC wide functions such as Church Tables, weddings and funerals. Use of the kitchen facility is the responsibility of the Kitchen Coordinator/Committee. All persons or outside organizations using the kitchen must be pre-approved by the Kitchen Coordinator or Kitchen Committee representative, pay the appropriate fee(s) if/as applicable and are required to comply with the following procedures: 1. Follow posted instructions carefully before using dishwasher or request training PRIOR to event (CAUTION the dishwasher operates at 160 deg. F.). 2. Clean, dry and put away all dishes and utensils according to approved methods of sanitation. 3. Wash all counter tops and work areas with cleanser followed by a rinse and then wipe dry. 4. Do not leave leftover food in the refrigerator(s) unless approved by the Kitchen Coordinator or Kitchen Committee representative. If you have significant quantities of food left over from an event, ABC recommends taking it to the Rescue Mission. 5. Clean and check stoves, ovens and other appliances to make sure they are turned off or unplugged and nothing is left inside of ovens. 6. Remove any food items brought in to ABC for your event/function from the refrigerator. 7. If your group created substantial waste, it is your responsibility to remove it from the building. A dumpster behind Fellowship Hall is available for waste collection. 8. If you know that your event will require extra trash bags, please provide your own or contact the office before your event is scheduled. Opening, Use and Closing of Facilities: 1. Keys will be issued to one group/organization representative. The group/organization representative is responsible to secure instruction as to which door(s) to use for access into facilities. The handicapped door touch pad is inoperable after 5:00 p.m.; however the door is still handicapped accessible/operable by using the handle/latch. See instructions at left side of door. 2. If you find it necessary to hang signs or posters on any surface (e.g., windows, inside or outside doors, or on pews, walls, etc.) contact the office for PRIOR approval and instruction. Regular masking and scotch tape, for example, removes the finish from wood surfaces and leaves marks on the window glass. ABC Church - Facilities Use Policy Page 6

3. Do not disturb materials found in the room. Use a leave NO trace mentality. If you need specific materials for a project that your group is working on, be sure to bring them. Do not use materials including paper, paints, cardboard, etc. that you may find in the room(s). 4. Use Air Conditioning (A/C) and Heat respectfully. A. If you decide to use the A/C, KEEP ALL DOORS AND WINDOWS CLOSED. Adjustments for A/C or Heat may only be made in rooms having instructions posted on the unit. You must follow all directions posted on the heating and cooling units as to how the units are to be operated and adjusted. If there are any problems with the heating or cooling units, you must contact the church office as soon as possible. B. Restore all A/C and heat controls to their original position and turn A/C OFF when you leave. NOTE: even if you did not turn it on, it is your responsibility to make sure that the A/C is OFF when your group has finished using the ABC room(s)/facility(ies). 5. When your group has finished, leave the room(s) as you found it/them or better than you found it/them. Turn off lights in restroom(s) as well as reserved room(s). 6. If yours is the last group leaving, you are responsible for shutting down the building before you leave. Pay special attention to the following: General Information: A. Verify that ALL DOORS (outside and inside) ARE LOCKED. B. Lower and upper bathroom lights are turned off. C. Basement hallway lights are turned off. 1. NO ALCOHOLIC BEVERAGES OR DRUGS ARE PERMITTED ON CHURCH PROPERTY. 2. NO SMOKING IS PERMITTED IN THE BUILDING. 3. Your event note that should not list ABC as a contact for information. ABC will not be responsible to inform people of cancellations, changes, etc. 4. No signage/advertising may be posted on ABC property without PRIOR permission from the church office staff. All signage is subject to Property Committee approval. 5. User groups may not use the name ABC Church in any publicity without PRIOR permission. You may list ABC Church s address ( ) for directional purposes only. You are requested to provide us with copies of any literature, posters, publicity, etc. pursuant to your event. The sponsoring organization must be clearly identified. 6. Capacities for rooms are established by the Fire Department. A fire lane must be kept clear. Violations of these rules are violations of city codes. ABC Church - Facilities Use Policy Page 7

7. Responsible care of the building and equipment is required at all times: damage and/or breakage must be reported to a member of the office staff within one business day of the event. 8. ABC is not responsible for any lost, damaged or stolen articles. 9. The contact person(s) shall assure that all participants are aware of and obey this policy. The behavior of each participant reflects on your entire group and affects your future use of the facilities. 10. In the event of an Emergency such as fire, personal injury, etc. call 911 to report the emergency and then contact the Pastor, Custodian, Property Chairman, or Kitchen Coordinator. See listing located on the contact page. 11. Follow Severe Weather precautions provided in the appendix and posted within ABC. 12. A signed copy of this Facilities Use Policy should be distributed to the primary contact person(s) associated with the event. 13. Everyone using ABC facilities must obey all church rules, and all federal, state and local laws and act in accordance within ABC values, principles, goals and mission. ABC Church - Facilities Use Policy Page 8

Appendix 1: Emergency Response and Contact Information In all cases of emergency, your first consideration is the safety and welfare of your guests and event attendees. Please review these guidelines in advance of your event or use of ABC facilities and make sure you and your event coordinators are familiar with these guidelines and building layout. Weather (Tornados or Severe Weather): Take shelter immediately in designated areas. Move away from window/glassed areas of the building to areas located in the interior hallways of the lower level of ABC Church. There are instructions and maps posted in rooms and other areas of ABC Church indicating how to proceed to sheltered locations. Fire: Evacuate the building immediately and then call 911 to report the fire. Mechanical/Electrical: If there is a problem with the mechanical or electrical operations of the building, call an emergency contact via the emergency numbers listed on this page and advise of the nature of the emergency. Medical/Police: In the event of a medical or law enforcement emergency, call 911 immediately. Building Damage: If there is any significant damage to the building or ABC Church property (e.g., broken window), immediately call an emergency contact via the emergency numbers listed on this page and advise of the nature of the emergency. Minor interior damage must be reported on the next business day. Emergency Contact Numbers: for general information questions. NOTE: Please do not call the emergency contact numbers Medical/Police/Fire 911 Pastor : Associate Pastor : Building Maintenance Supervisor : Chairman of Property Committee: XXX-XXX-XXXX XXX-XXX-XXXX XXX-XXX-XXXX XXX-XXX-XXXX ABC Church - Facilities Use Policy Page 9

Exhibit C - ABC Church - Facilities Use Agreement Page 1