1 Church Guidance Seminar Practical legal steps to address same-sex concerns and related nondiscrimination laws © 2015 Christian Legal Society, All Rights Reserved.

2 Your speaker: Jon Forehand practices in the Moultrie law firm Allen, Forehand & Adams. Mr. Forehand’s practice includes representation of churches and non-profit organizations. His trial practice concentrates on criminal defense, personal injury litigation, and family law. Jon is a graduate of Emmanuel College (1984), and Lee University, cum laude (1986). At Lee University he was named a Pi Delta Omicron Scholar by the Theology Department. He received his law degree from the University of Georgia (1990), and completed a program in risk management through Cambridge University (2001). Jon is a member of the Christian Legal Society. He is a lifetime member of the Million Dollar Advocates Forum. He was named one of Georgia’s Top 100 Trial Lawyers by the American Trial Lawyers Association and one of Georgia’s “Ten Best” by the American Institute of Family Law Attorneys. He is a member of the bar of the Supreme Court of the United States. Jon has served as legal counsel for numerous denominations, churches, and non-profit organizations. He has also served on the board of directors for various non-profit organizations including the IPHC Extension Loan Fund, Inc., a multi-million dollar investment and loan fund. Jon is a registered mediator and arbitrator. Jon is married to Christine Hopkins Forehand, a licensed minister, author and speaker. They have three children and are active members of Heritage Church. Jon V. Forehand ALLEN, FOREHAND & ADAMS, P. O. Box 1687 Moultrie, Georgia (229)

3 © 2015 Christian Legal Society, All Rights Reserved. Legal areas with practical implications for churches:  US Supreme Court’s same-sex marriage decision  Developing anti-discrimination laws  Facility usage, marriage, employment, membership, speech Practical Guidance – Several Areas Today’s Seminar:

4 © 2015 Christian Legal Society, All Rights Reserved. Windsor Decision on Same-Sex Marriage 5-4 decision with Justice Kennedy writing majority opinion: Congress’s definition of marriage as “only a legal union between one man and one woman” for purposes of 1000 federal laws and regulations was unconstitutional: 1. Federalism: States traditionally define marriage. 2. Improper animus: Allegedly only reason Congress passed law was to harm and demean same-sex couples.

5 © 2015 Christian Legal Society, All Rights Reserved. Obergefell Decision on Same-Sex Marriage 5-4 decision with Justice Kennedy writing majority opinion: States’ definition of marriage as only between a man and a woman violates the Constitution: 1.Due Process Clause 2.Equal Protection Clause

© 2015 Christian Legal Society, All Rights Reserved. 6 Obergefell Decision on Same-Sex Marriage Holding: Marriage is a fundamental right from which same-sex couples cannot be excluded for four reasons: 1. Individual autonomy 2. Two-person union unlike any other 3. Safeguard for children and families 4. Keystone of our social order

© 2015 Christian Legal Society, All Rights Reserved. 7 Obergefell Decision on Same-Sex Marriage Dissents: 1. For millennia across all societies, marriage has been defined as between a man and a woman. 2. Constitution does not define marriage, and especially does not protect any “fundamental right to same-sex marriage.” 3. States have authority to define marriage. 4. Democratic process should not be short-circuited by 5 unelected judges.

© 2015 Christian Legal Society, All Rights Reserved. 8 Obergefell Decision on Same-Sex Marriage Religious liberty Dissenters voice concern. Majority: First Amendment ensures religious organizations and persons are properly protected as they seek to teach the principles central to their faiths. Solicitor General Verrilli: 1. Tax-exempt status 2. Religious colleges’ housing

9 © 2015 Christian Legal Society, All Rights Reserved. RFRA states where passed and pending

10 © 2015 Christian Legal Society, All Rights Reserved. Employment non-discrimination law covers sexual orientation and gender identity (19 states + D.C.) Employment non-discrimination law covers only sexual orientation, though federal law offers some protections (see note) (3 states) No employment non- discrimination law covering sexual orientation or gender identity, though federal law offers some protections (see note) (28 states) State has law preventing passage or enforcement of local nondiscrimination laws - See more at: maps/non_discrimination_laws#sthash.cjcTUx5S.dpuf Percent of LGBT Population Covered by Laws 40% of LGBT population lives in states prohibiting employment discrimination based on sexual orientation and gender identity 48% of LGBT population lives in states prohibiting employment discrimination based on sexual orientation 52% of LGBT population lives in states that do not prohibit employment discrimination based on sexual orientation or gender identity - See more at: Legal Complexities Abound 22 States include Sexual Orientation as Protected Class in State Nondiscrimination Laws (17 of these also include Gender Identity)  Public accommodation for facilities  Employment  Housing 28 States do not protect SOGI, but localities may.

© 2015 Christian Legal Society, All Rights Reserved. 11 The Struggle is Real

12 © 2015 Christian Legal Society, All Rights Reserved. Practical Applications  Doctrine = freely held religious beliefs – absolute constitutional protection  Practice better protected when rooted in beliefs  Policies and governing docs are the conduit between faith and practice Doctrine Governing Documents Practice

13 © 2015 Christian Legal Society, All Rights Reserved. Governing Documents  Incorporate statement of faith including stance on Biblical marriage and sexual conduct, with Biblical citations  Root theologically sensitive bylaw provisions in the Church’s sincerely held religious beliefs  Statement of Final Authority on Matters of Faith and Conduct  Membership policy-becoming member, termination/discipline of member, and Biblical dispute resolution  Require signed membership agreement, covenant, or application Policies Constitution & Bylaws Articles of Incorporation

14 © 2015 Christian Legal Society, All Rights Reserved. Statement by Pastor Regarding Same-Sex Marriages 1.I am a minster of the gospel of Jesus Christ, credentialed by the Church of God (Cleveland, Tennessee). 2.Affirming that God’s grace is available to all, I recognize our obligation before God to love all persons, understanding such love in the context of God’s revealed truth. 3.Based on scriptural passages such as Genesis 2:24 and Matthew 19:3-9, it is the long- established biblical/religious belief of Church of God, to which position and belief I adhere, that marriage is a spiritual union in which one man and one woman are joined by God to live together as one. 4.It is my personal religious belief and policy of my credentialing Church that same-sex marriages are not God’s design for marriage and are contrary to biblical teaching. Therefore, I will only perform or participate in marriage ceremonies or marriage blessings between one woman and one man. 5.According to the requirements of Church of God, my local congregation shall only hold, provide facilities for, conduct or preside over weddings, wedding receptions and anniversaries (and other gatherings related to weddings, reception and anniversaries) that celebrate the marriage or blessing between one man and one woman, as marriage is defined in the Bible. This shall include any activity or service involving marriage or relationships between one man and one woman, such as direction of children. 6.This church, and I as its pastor, rely on all protections of the free exercise of religion granted by the First Amendment of the United States Constitution as well as other applicable state and federal laws.

15 © 2015 Christian Legal Society, All Rights Reserved. Public Accommodation?  Strictly: “property that is made open to the public”  Stores, restaurants, hotels  Educational facilities, community centers  Issue: When could a church’s activities lead to a public accommodation legal challenge?

16 © 2015 Christian Legal Society, All Rights Reserved. Facility Usage Policies  Does your church have one?  Consistent with doctrine?  Authority of church leadership to make final decisions?  What about fees?  Written agreements required?  Actually used?

17 © 2015 Christian Legal Society, All Rights Reserved. Wedding/Special Event Policies  Does your church have one?  C onsistent with doctrine?  Authority of church leadership to make final decisions?  What about fees?  Written agreements required?  Actually used?

18 © 2015 Christian Legal Society, All Rights Reserved. Employment Policies and Practice  Faith requirements for church Employment  Volunteers too!  Job description aspects – “minister”  Code of conduct  Discipline and conflict resolution  Handbooks  Written acknowledgement  Walking the talk

19 © 2015 Christian Legal Society, All Rights Reserved. Words and actions matter  What is contained in the Church’s documents?  What does the Church actually DO?

20 © 2015 Christian Legal Society, All Rights Reserved. Impact on Outreach Ministries Church Outreach Ministry Church Outreach Ministries

21 © 2015 Christian Legal Society, All Rights Reserved. Housing  Can be important church ministries  What about SOGI protections?  What about religious exemptions?  In-house/separately incorporated?  Maintain religious identity

22 © 2015 Christian Legal Society, All Rights Reserved. Importance of Training  Written policies will mean very little if not actually carried out in practice!  Employment  Facility Usage, including weddings  Paid and volunteer staff  How to handle sensitive membership issues?

23 © 2015 Christian Legal Society, All Rights Reserved. Preaching and Teaching on Biblical Sexuality  Bigger issues are CULTURAL, SPIRITUAL  What does the Bible say?  About God, His plans for us, marriage, men and women, our submission with our hearts, minds, souls, and bodies?  About compassion, humility, love, His sufficiency for all?

24 © 2015 Christian Legal Society, All Rights Reserved. Political Dimensions and Limitations  Legal constraints on churches and their representatives (501(c)(3) status)  No political campaign activities  Limited lobbying  Issue advocacy – educational  First amendment rights for individuals (speech, free exercise, association)

© 2015 Christian Legal Society, All Rights Reserved. 25 No one legal solution fits all

26 © 2015 Christian Legal Society, All Rights Reserved. Time to call the Church’s lawyer?  Growing legal complexity  Options:  Planning...  Crisis...  What are your Church’s –  Priorities  Greatest concerns?  Specific issues?  Find a knowledgeable Lawyer who fits your church.

27 © 2015 Christian Legal Society, All Rights Reserved. What’s next?  Check/upgrade articles of incorporation, bylaws, membership requirement  Facility usage policies and agreements (Weddings, etc.)  Workers – employees and volunteers  Policies, agreements, “ministers”  Keep up with religious exemptions in SOGI laws (or not)  Consider implications for separately formed ministry Organizations

28 © 2015 Christian Legal Society, All Rights Reserved. What’s next?  Get a good lawyer!  Continue praying  Preach and teach on Biblical sexuality  Get a good lawyer!

29 © 2015 Christian Legal Society, All Rights Reserved. Church Guidance White Paper:

30 © 2015 Christian Legal Society, All Rights Reserved. Q & A

31 © 2015 Christian Legal Society, All Rights Reserved. Church Guidance Seminar Disclaimer: These materials are provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this information should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. The Christian Legal Society and any of its partners expressly disclaim all liability relating to actions taken or not taken based solely on the content of this material. For specific legal advice, which will be needed, please contact an attorney.