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Toledo Legal News - Bill would protect pastors who refuse to officiate gay marriages from lawsuits


The Ohio Pastor Protection Act, introduced last legislative session in the state House of Representatives in response to the U.S. Supreme Court's landmark Obergefell decision, has been revived and reintroduced as House Bill 36.

Last week, the bill's sponsor, Rep. Nino Vitale, R-Urbana, and proponents of the measure to provide legal cover to any ordained or licensed minister or religious society that refuses to solemnize a marriage based on sincerely held religious beliefs provided testimony to members of the Community and Family Advancement Committee.

In addition to the high court's holding in Obergefell et al. v. Hodges, which legalized gay marriage, the court's holding in Employment Division v. Smith in which a majority held that an individual's religious beliefs do not excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate suggested the need for such a measure, Vitale told committee members.

Proponents believe that such rulings effectively could carve away the freedom of exercise protection afforded all Americans under the First Amendment to the U.S. Constitution.

"My reason for writing this bill is to stop a litigation war in Ohio," the lawmaker told his peers on the committee. "This language may sound a bit dramatic, but we live in an increasingly secular and pluralistic society where there are many belief systems."

Under the bill, a minister or society that refuses to solemnize a marriage or allow its property to be used to host a ceremony for this reason is immune from civil or criminal liability.

The measure also prohibits the state or a political subdivision from penalizing or withholding any benefit or privilege from the minister or society, including any governmental contract, grant, or license.

Under current law, the following persons may solemnize a marriage:

An ordained or licensed minister of any religious society or congregation within Ohio who is licensed to solemnize marriages;

A judge of a municipal, county or probate court;

The mayor of a municipal corporation, so long as the marriage occurs in a county in which the mayor's municipal corporation has territory;

The superintendent of the Ohio School for the Deaf; and

Any religious society in conformity with the rules of its church.

HB 36 specifies that these persons and entities may solemnize any marriage allowed by law, rather than solely a marriage between a husband and wife.

Analysis by the Ohio Legislative Service Commission found that the bill doesn't amend the provision of the Ohio Revised Code that prohibits same sex marriage.

The Supreme Court's holding in Obergefell, however, requires the state to permit same sex marriage.

"While some may say that we don't need this law or it's redundant, I think it's clear from the statements mentioned above, that people who have been in and study the law for their entire lives see serious danger ahead," Vitale cautioned. "Let us avoid this danger in Ohio, and create an environment where we propose our ideas and do not impose them on others or minorities through the force or courts."

Fr. Boniface Endorf, a priest at St. Patrick Church in Columbus told committee members that the freedom to exercise the religion of one's choosing calls for vigilance and determination.

"We must constantly strive to protect the fundamental dignity of people to answer these ultimate questions by their own conscience," he said. "There always exists a risk of compelling free citizens to believe whatever is ascendant in popular opinion.

"Our system of government affords minorities many protections that embody the constant need to protect minorities from what politically powerful factions demand. These protections are essential to our basic freedoms."

HB 36 would protect pastors and churches, "who hold to what the West has believed from time immemorial," Endorf added.

The priest clarified that he was not suggesting such freedoms would be outlawed; rather, he recognized the issue as legal coercion to change beliefs.

"A society that allows people to believe a position only so long as they act as if they believed something else is not a free society," he continued. "To say that people can believe what they will about marriage, but they must participate in marriages contrary to their conscience, is to say that one is free only so long as one is willing to be a hypocrite."

The American Civil Liberties Union of Ohio joined Equality Ohio, TransOhio and the Human Rights Campaign to author a press release in response to testimony supporting the measure.

"Religious liberty is a fundamental right held by Americans," Equality Ohio Executive Director Alana Jochum said in the prepared statement "Ordained clergy can already decide who they marry - and who they don't - according to their beliefs.

"We strongly support the separation of church and state."

The bill's detractors also identified unintended consequences of such legislation.

"HB 36 opens a Pandora's box of problems that could significantly roll back marriage equality in Ohio," ACLU Ohio Policy Manager Lisa Wurm said. "It may allow businesses or other officials to discriminate against same-sex couples.

"The U.S. Supreme Court was clear that people should not be treated unfairly because of who they love, yet politicians continue to try and undermine this basic right."

Human Rights Campaign Legal Director Sarah Warbelow called the measure mean spirited and said she was disappointed that lawmakers were trying to solve a problem that didn't exist.

The bill has broad support in the House with 26 cosponsors.

Subsequent hearings had not been scheduled as of publication.

KEITH ARNOLD, Daily Reporter Staff Writer

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