June 2006 Issue

Churches Supporting Marriage Amendments — It's Legal!
by Michael Foust

Churches can support proposed constitutional marriage amendments without any fear of losing their tax-exempt status, an attorney with a religious liberty organization says.

Seven states are scheduled to vote on marriage amendments this year, and conservatives in two others — Arizona and Colorado — are gathering signatures with the goal of being added to that list.

Gary McCaleb, senior counsel with the Christian legal group Alliance Defense Fund, said pastors can voice support for the amendments from the pulpit and churches can assist in petition drives without fear of reprisal from the Internal Revenue Service.

"In respect to their Internal Revenue Service tax exemption, they have a lot of liberty and leeway to support a ballot initiative," McCaleb told Baptist Press. "As long as what they do is an insubstantial amount of their total budget, they're pretty much free to do whatever they want in support or opposition to the ballot initiative."

Various courts have ruled that a "substantial amount" ranges anywhere from 5-15 percent of an organization's total resources, McCaleb said. So, if a church's budget is $100,000 and it spends less than $5,000 to support a marriage amendment — which would amount to less than 5 percent of the budget — "you're home free and clear as far as the IRS is concerned," McCaleb said.

Nineteen states have adopted marriage amendments, and churches have been critical to their passage in nearly every instance. Facing a deadline in Oregon in 2004, churches in that state helped gather two hundred thousand signatures in only five weeks in a successful effort to place an amendment on the ballot. It passed easily. Support for the amendments from the pulpit also has helped drive conservative voters to the polls. The nineteen amendments have passed with an average of 71 percent support.

But while IRS law is clear in allowing support for marriage amendments, state election laws occasionally are not. In March, a Montana state official ruled that a Southern Baptist church there broke state law in 2004 by gathering signatures for a marriage amendment and voicing support for it from the pulpit. The church, the ruling said, first should have registered with the state as an "incidental political committee." ADF has filed a suit seeking to have the state law struck down, arguing it violates constitutionally protected religious expression and free speech. A federal judge could issue a ruling any day.

Arizona's law is similar to Montana's, McCaleb said, adding that Colorado's law appears to give more leverage to churches. He believes Montana's law and others like it eventually will be struck down as unconstitutional.

"[T]he bottom line is that this is clearly a constitutional right," he said of supporting a marriage amendment. "We would very readily stand in and defend a church that allowed petitions to be circulated on its premises, because we think that the laws that regulate are almost undoubtedly unconstitutional."

Asked what advice he would give to churches, McCaleb said, "Don't take counsel of your fears.

"[Y]ou should have the courage of your convictions," he said.

"Christians look at this as a very principled issue of free exercise of religion," McCaleb said. "The left-wing looks at it as an opportunity to silence the Christians."

It actually helps, McCaleb said, that a handful of liberal churches in Arizona and other states are opposing the amendments. Because of that, liberal groups are less likely to turn in conservative churches.

"The organized opposition would probably be reluctant to file a complaint, because someone would burn them the same way," he said.

But churches in Arizona wanting to gather signatures for a marriage amendment can take practical measures to try and avoid breaking state law — even if they believe the law is unconstitutional. For instance, copies of the petitions could be made on paper and copiers not owned by the church, McCaleb said. Also, volunteers could be allowed to come into the church to gather signatures. It even helps if the volunteers are not given a table but instead walk around and use clipboards, he said.

"If these folks are volunteers doing it of their own volition, the only real question is, 'Does a church official want to call these people trespassers and throw them off, or do you let them on as guests?'" McCaleb asked.

Laws such as those in Montana and Arizona "need to be stricken down, and the only way they can be stricken down is through court action. And that takes a church willing to stand for its rights," he added.

Seven states are scheduled to vote on marriage amendments this year: Alabama, Idaho, South Carolina, South Dakota, Tennessee, Virginia, and Wisconsin. It is possible that by the end of 2006, a majority of states will have adopted them. The amendments are designed to prevent state courts from legalizing "gay marriage." Massachusetts has no such amendment, and in 2003 its highest court issued a ruling legalizing "gay marriage." Currently, eight states are involved in "gay marriage" lawsuits. Only one of the states has a marriage amendment.

The Alliance Defense Fund can be reached at 1-800-TELL-ADF.

For additional information about the national debate over "gay marriage," visit www.bpnews.net/samesexmarriage. For a related sample sermon, go to www.baptist2baptist.net and click on "Reports, Articles & Papers."

To: SBC Pastors
From: The ERLC and Focus on the Family
Memo: Promote Marriage Amendment
by Tom Strode

The Southern Baptist Convention's public policy entity and the advocacy offshoot of a well-known pro-family organization have collaborated to urge pastors to promote support for a federal amendment to protect marriage.

In a letter to all of the 43,600-plus Southern Baptist churches, the Ethics & Religious Liberty Commission and Focus on the Family Action asked pastors to help in seeking passage of the Marriage Protection Amendment, S.J. Res. 1. The letter was sent as the Senate moves toward what is expected to be a vote on the proposal in early June.

The amendment, which defines marriage as only between a man and a woman, is intended to protect the institution against continuing legal efforts to legalize "homosexual marriage." So far, only Massachusetts has legalized "same-sex marriage," but supreme courts in New Jersey, New York, and Washington could legitimize such unions before the end of 2006, according to a recent analysis by the Senate Republican Policy Committee.

In their letter, ERLC President Richard Land and FOFA chairman James Dobson told Southern Baptist pastors their assistance is needed to protect the family. Land and Dobson, two of the leaders in the campaign to enact a marriage amendment, urged them to "involve your congregation...in the battle to preserve the biblical definition of marriage in the face" of attacks from "radical liberal groups and homosexual activists."

Many senators have not announced their positions on the amendment, Land and Dobson said. "Your involvement will help ensure that each senator receives tangible evidence" of his constituents' support for protecting marriage, they wrote the pastors. Their goal is to surpass a million postcards sent to senators' state offices, Land and Dobson said.

The mailing, which was sent April 12, included sample postcards. Pastors also are encouraged to order sheets of postcards without charge for members of their congregations to use.

In addition, Land and Dobson asked pastors to mention the effort from the pulpit, "if God should lead you to do so."

Focus on the Family Action paid for, printed, and mailed the materials that were sent to SBC churches. FOFA is legally separate from Focus on the Family, the pro-life radio program and ministry Dobson started in 1977.

The proposed amendment says, "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

In 2004, the Senate failed to provide an up-or-down vote to a similar amendment. Supporters gained only forty-eight of the sixty votes needed to halt debate and allow a vote — a procedure called invoking cloture. Fifty senators voted against cloture, thereby blocking a vote. It appears supporters of the amendment will have at least a few more votes this year.

The House of Representatives achieved a majority on a similar amendment in 2004, but the 227-186 vote fell far short of the required two-thirds majority, or 290 votes, needed for passage.

Ratification of an amendment to the federal constitution requires not only passage by two-thirds of both houses of Congress but approval by three-fourths of the states.

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