Supreme Court’s Same-Sex Cert. Denial: Tacit Refusal with Massive Implications

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The Supreme Court of the United States recently refused to hear federal appeals from five states concerning the legality of same-sex marriage.  As explained in the Chicago Tribune, “When the Supreme Court declines to hear a case — known as "denying cert" — it can seem anticlimactic.  Instead of dramatic oral arguments and protests outside the court, we get a written notification that the decision of an appeals court will stand.  But sometimes, denying cert is an earthquake.  And that's what happened last week.  The court denied cert in same-sex marriage cases from Indiana, Wisconsin, Utah, Virginia and Oklahoma…    Argument over same-sex marriage is all but over,” Chicago Tribune, October 8, 2014. 

Given the nature of federal courts’ jurisdiction, the Tribune could be right. Federal circuit courts of appeal have jurisdiction over more than one state.  When a federal court of appeals makes a decision affecting one state, generally that decision is binding on all the states within that circuit’s jurisdiction.  In this case, the circuits involved cover 30 states.  The Supreme Court’s refusal to hear an appeal of the circuits’ decision effectively legitimizes same-sex marriage in those thirty states.  Since the Supreme Court’s denial of cert, another federal district court judge has also struck down laws banning same sex marriage in Alaska.  Same-sex marriage therefore eventually could be the law of the land in all fifty states.

Potential collision course for religious organizations

For many churches, other religious institutions, and faith-based organizations, these appellate court decisions – coupled with the Supreme Court’s cert denial – conflict with sincerely religious beliefs.  The First Amendment provides protection for religious liberty interests.  Accordingly, churches and other religious institutions are generally considered exempt from laws related to sexual orientation and gender identity.  Such exemptions do not necessarily extend, however, to other faith-based organizations, such as para-church ministries.  Many states, counties, and municipalities have increasingly included sexual orientation as a protected class in nondiscrimination statutes, with only limited protections for religious organizations.  

With respect to a for-profit business, no religious liberty protections whatsoever exist.  On this basis, for example, the New Mexico Supreme Court recently held that a photography company had engaged in sexual orientation discrimination when it declined, on religious grounds, to photograph a same-sex commitment ceremony.  See Elane Photography, LLC v. Willock, 2013-NMSC-040.

These statutory restrictions typically cover employment, places of accommodation, and housing.  Religious organizations thus should be particularly mindful regarding use of facilities.  Federal and state laws prohibit discrimination in “public accommodations.”  The definition of “public accommodation” could soon expand from “essential services,” (such as public carriers, motels, restaurants, etc.) to “all activities in commercial and civic law.” Such an expanded definition could encompass a wide range of services, such as coffee shops, camping programs, and counseling centers.  While no church-owned sanctuaries or conference centers have been deemed “public accommodations” yet, but instead are private property, it may well be only a matter of time for a legal test case. 

Action items:  Evaluation and hard decisions

The changing legal landscape affecting same-sex marriage, sexual orientation, and gender identity makes it all the more important that nonprofit leaders carefully evaluate organizational documents, operational policies, and activities in light of these new laws. Specifically, nonprofit boards can take the following actions to protect the organization and reduce the risk of legal liability.

1.              Seek to understand the emerging legal landscape so as to best protect the organization.  In some cases, the organization’s policies or activities may be illegal under new laws or at least subject to challenge.  Experienced legal counsel in these areas can provide information and guidance to assist nonprofits in navigating these challenging waters. 

2.              Evaluate organizational charter documents, internal operations, and activities provided to others to ensure that they are consistent and accurately reflect the organization’s values. 

3.              Evaluate the organization’s programming to ensure that the entity’s activities do not expose the organization to liability.  Facility rentals, for example, may be an important revenue stream for organizations, but such activities may expose an organization to liability under the “public accommodation” theory if not properly structured and executed. 

4.              Carefully develop and implement other organizational policies to further reduce legal exposure for the entity and to allow the nonprofit to operate consistently with its sincerely held beliefs.  For example, if religious aspects are important to a particular job (e.g., a counselor at a faith-based organization, who is expected to live out sexuality-related Biblical requirements), then the job description should reflect such requirement and the basis therefor (e.g., to provide counseling consistent with the organization’s sincerely held religious beliefs, to be an effective role model, etc.).