Tennessee drafting 'Pastor Protection Act' after Supreme Court ruling

Tennessee's 'Pastor Protection Act' would protect religious leaders who refuse to perform a same-sex marriage, though their rights are already protected under the First Amendment.

Larry McCormack/The Tennessean via AP
Megan Barry performed the first same-sex marriage between Lauren Mesnard and Nikki VonHaeger performed in Davidson County on Friday, June 26, 2015, in Nashville, Tenn.

A new bill in Tennessee seeks to "protect" churches and clergy from performing same-sex marriages. But is it necessary?

The move comes after the Supreme Court ruled in favor of the nationwide legalization of same-sex marriage on Friday. State Reps. Bryan Terry and Andy Holt anticipated the Supreme Court ruling and have been working on the bill for several months, reports Nashville's CBS affiliate.

Both representatives reject the validity of yesterday’s decision. “God is the ultimate Supreme Court and he has spoken. Marriage is between one man, and one woman," Representative Holt said in a press release

The proposed law would reiterate protections already in place. As Representative Terry noted, “The First Amendment of the US Constitution guarantees freedom of religion.” He also cited Article 1 Section 3 of the Tennessee Constitution and said "personal freedom of religion is protected and no human authority can interfere in the rights of conscience.”

The nonpartisan Pew Research Center notes that "virtually everyone agrees that the First Amendment ... protects clergy from being required to officiate at marriages for same-sex couples and churches from being forced to allow gay and lesbian couples to marry in their sanctuaries." Even the anti-gay Family Research Council notes that "churches and ministers have solid protection ... [T]here is no appreciable risk that clergy would be compelled by a court to host or perform a same-sex ceremony."

The Pew Center anticipate the challenges coming in the grey areas, like renting out church basements or retreat centers owned by religious non-profits. 

But neither clergy nor churches are in any direct danger, say experts. As the Rev. Emily C. Heath wrote in "The Religious Liberty to Support Gay Marriage":

Here is how a clergyperson stops a wedding from occurring in their church: they say "no".

I know that because I have said "no" to couples wanting to get married in the church I serve. The reasons? I didn't think they were ready. Or I didn't think they communicated well. Or they asked me not to say "God" during the service.

The legal recourse I have faced as a result? Nothing. Nada. Zip. That's because the law already absolutely protects me, as well as every other clergy member in this country, from having to officiate at a wedding I do not believe should occur.

And clergy have used that law for some pretty heinous reasons. They've denied interracial couples a marriage in their church. They've kept divorced people from marrying again. They've refused weddings to couples where the woman does not agree to submit to the husband.

And, as awful as it sounds, they've done it all legally. 

Other Republican states have also been dragging their feet in responding to the Supreme Court decision. In Louisiana, officials won’t be granting marriage licenses to same-sex couples just yet, according to LGBTQ Nation. The Louisiana Clerks Association advised clerks to wait until the end of a 25-day period for the high court to consider a rehearing. In 2004, voters approved a constitutional ban on same-sex marriage in the state, which a federal judge upheld last year.

Tensions between same-sex marriage advocates and conservative religious activists emerged after Indiana’s legislature passed a controversial version of the Religious Freedom Restoration Act in March. Critics said it would have allowed discrimination against same-sex couples in the state, but the law was immediately revamped after a corporate backlash threatened widespread boycotts against Indiana.

Public opinion on same-sex marriage remains mixed, especially when religious freedom is explicitly mentioned. In May, a Gallup poll found that 60 percent of those surveyed support same-sex marriage. Yet in January, an Associated Press survey found that 57 percent respondents believed that wedding-related businesses with religious objections should be allowed to refuse service to same-sex couples.

While there is still no federal law banning discrimination based on sexual orientation, 22 states and DC do have anti-discrimination statutes, most of which include protections for religious groups.

Robert Tuttle, who teaches religion and law at George Washington University told the Pew Center that he believes there may be some lawsuits in the wake of the Supreme Court ruling, but that more often than not, accommodation and compromise are likely to win out. “After all, we still allow institutions, like universities, to discriminate based on gender,” notes Professor Tuttle.

“There’s a big difference between something that could be an issue and something that’s likely to be an issue," he says.

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