This summer, the Family Research Council – a leading opponent of gay marriage – essentially told pastors that they didn't have to worry about refusing to marry same-sex couples. “Churches and ministers have solid protection, [and there] is no appreciable risk that clergy would be compelled by a court to host or perform a same-sex ceremony,” it said.
Yet on Wednesday, a committee of Florida lawmakers passed a so-called “pastor protection act,” sending it to the full legislature for a vote next year. It was, supporters said, an “extra layer of protection.”
Attempts in Texas, Tennessee, and now Florida to pass pastor protection acts have limited legal importance; as the Family Research Council noted, pastors are likely already covered by the First Amendment. But the would-be laws – like other religious freedom laws emerging in red state legislatures around the country – hint at a deeper shift in how conservative Christians view the American legal system.
The legislative push for new legal protections for clergy underscores the sudden sense of vulnerability and disorientation among many social conservatives and others who have long enjoyed the kind of legal protections that LGBT Americans, for example, have not. In short, they don't trust that the courts will rule in their favor anymore, and so are trying to build as strong a bulwark as possible.
Pastor protection bills “ultimately have to do with the organization of society and the sense of what is normative, where people feel the ground has been torn out from under them,” says Robert Tuttle, a constitutional law professor at George Washington University Law School.
That sense of shifting ground has come from a number of legal decisions both before and after the landmark Obergefell decision by the United States Supreme Court, which legalized gay marriage in June.
So far, refusals by bakers to bake cakes for gay couples have been condemned by several federal courts, ruling that business owners don’t have full protections under the First Amendment to discriminate based on religious beliefs. That issue gave rise to a controversial religious liberty law in Indiana in March. Meanwhile, in Kentucky and Alabama, refusals by court clerks and probate judges to solemnize gay marriages or sign marriage licenses have been deemed unconstitutional by federal courts, given the legal understanding that neither the state nor its proxies have a religion.
As for religious organizations, Supreme Court Chief Justice John Roberts said in his dissent to the Obergefell ruling that it is “inevitable” that government and churches “will come into conflict.”
But Justice Anthony Kennedy, who wrote for the majority, asserted that the First Amendment would offer enough protection. It “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,” he wrote.
State Rep. Scott Plakon (R), the sponsor of House Bill 43 in Florida, says many church leaders and parishioners see rapid cultural and legal changes that point to looming threats to the free agency of religious leaders, despite First Amendment protections.
The new bill, Representative Plakon told reporters, “just makes it clear” that clergy remain protected from legal challenges.
Indeed, despite First Amendment protections, it is not impossible that challenges to churches could find traction in the post-Obergefell era. In the 1983 Bob Jones University v. United States case, the Supreme Court ruled that the Internal Revenue Service has the right to remove tax exempt status from religious institutions whose practices are contrary to a compelling government public policy – in that case, ending racial discrimination.
Though today’s Supreme Court is more conservative than the one that ruled in Bob Jones, concerns that the IRS could take a similar tack on same-sex marriage issues remains a distant, though legitimate, concern, scholars say.
Legal gray areas
For now, the most likely challenges for churches could arise in grayer areas of the law, such as rental of church basements or retreat camps owned by religious nonprofit groups, according to analysis by the Pew Research Center on Religion & Public Life.
Before the Florida House Civil Justice Committee moved the bill to the legislature on Wednesday, clergy on both sides of the debate addressed lawmakers.
Pastor Gerald Bustin of the Open Door Community Church in Summerfield, Fla., said the issue was about America's fundamental religious freedoms.
“We will die before we will give up our religious freedoms in the United States to any group or any organization regardless of who they are, whether they’re government or whether they’re an LGBT organization or whoever, because we will stand for God and what we believe God has told us to stand for,” he said.
Pastor Harold Thompson of Miami Beach Community Church took a different view.
“Look at the true intent of this bill,” he said. “It is not to protect pastors, it is not to protect the church, it is to protect an agenda. It is nothing more than a wolf in sheep’s clothing, intending to deceive, intending to harm.”
Such emotional appeals underscore how high the stakes are.
In some ways, the push to protect pastors from courts is a proxy for a new “sense of vulnerability [among the clergy that] has to do with things that are deep and complicated, and which may get localized in these pastor protection acts,” says Professor Tuttle. “The outrage is at a change that’s both fundamentally inconsistent with their moral beliefs and doesn’t leave them with a ready way to signal their distance from it.”