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Churches Should Establish Their Position On Same-sex Marriage—Pro or Con
To protect themselves and their facilities from legal challenges, churches need to take inventory of their constitutional documents and revise them accordingly.


In response to recent case law and impending federal legislation regarding same-sex marriage, churches and religious charities should take steps to establish and protect their position—pro or con—on the issue.

"You can't say 'Our constitution is the New Testament;' or 'We have our own laws and traditions,' You'll be more vulnerable to attack."

Addressing the annual "Church & the Law" seminar put on by his firm, Carter & Associates, Terrance Carter told a 500-plus audience that if a religious organization fails to articulate its position on same-sex marriage, it is vulnerable to a challenge under human rights legislation or under the proposed Criminal Code amendments regarding hate propaganda (Bill C-250).

"It's up to a church, mosque or synagogue how it's going to present itself in a civil law context," he said. "If you don't, the court will make its own interpretation based on whatever evidence it gathers."

The basis of a church's own interpretation of the meaning of marriage is contained in the Ontario Court of Appeal's ruling in Halpern v. Canada (Attorney General), [2003] O.J. No. 2268, which held as follows: "Freedom of religion under s. 2(a) of the Charter ensures that religious groups have the option of refusing to solemnize same-sex marriages." This position is also contained in Parliament's draft Proposal for an Act Respecting Certain Aspects of Legal Capacity for Marriage for Civil Purposes in these words: "s. 2: "Nothing in the Act affects the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs."

Carter, past chair of the Canadian Bar Association's National Charity and Not-For-Profit Law Section, began by defining churches and other religious organizations as "voluntary associations of persons who come together for a collective purpose as reflected in their respective governing agreement, namely their constitution."

He stressed the importance of the constitutional documents, which are the repository of the organization's beliefs, noting, "Since a church is nothing more than what the individuals forming it decide it to be, it is essential for churches to clearly state what they believe and, where possible, relate those beliefs to Scripture."

The constitution for unincorporated churches usually consists of a single document; for incorporated churches, there are letters patent, general operating bylaws and policy statements.

"You can't say, 'Our constitution is the New Testament,' or 'We have our own laws and traditions,' " said Carter. "You'll be more vulnerable to attack."

He emphasized that a "Statement of Faith" should always be part of a church's constitution. "It is key," he said, "the bedrock of what you are."

If applicable, the Statement of Faith should reflect a church's theological belief in a literal and/or orthodox interpretation of Scripture. General quotes, such as those contained in the "Apostle's Creed," can be included, but he stressed that care should be taken not to quote passages that could be construed as promoting hatred against an identifiable group.

Other constitutional documents, such as charitable objects, operating bylaws and policy statements should contain a clear linkage with the Statement of Faith.

If the church does not support same-sex marriage, its policy statements should contain words "recognizing marriage as a holy sacrament of the church and defining marriage as being between one man and one woman in accordance with its Statement of Faith."

In addition, clergy should be required to subscribe to the church's constitution, including its Statement of Faith. The policy statement should include a term requiring marriage to be solemnized only by clergy of the local church or other clergy approved by the church who have subscribed to the Statement of Faith and the constitution of the church.

There could also be a term restricting the use of church facilities to church programs and purposes, which are consistent with the Statement of Faith. Carter cautioned that facility-use policies should use neutral wording and be prepared in a manner consistent with the requirements of the Human Rights Code. The wording should not refer to "identifiable groups."

Finally, he recommended that churches review their existing constitutional documents to ensure they are consistent with recent developments in the law.

He also suggested conducting a "legal audit" to examine possible exposure to legal liability. This would also apply, he said, to their liturgies and teaching materials.

"It would be prudent," he noted, "for local churches and/or denominations to educate clergy of their legal rights in relation to the fulfillment of their ministerial duties and the operations of the church as a whole."

John Jaffey is a staff writer for The Lawyers Weekly.

Originally published in The Lawyers Weekly, January 30, 2004.
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