Florida’s “Pastor Protection Act” Is Completely Unnecessary

State Representative Scott Plakon has filed a bill in the Florida Legislature allegedly intended to protect pastors and ministers from being forced to perform gay marriages.

Laws like this have been passed in Texas and have been proposed in Tennessee and Georgia.

Here’s the meaty part of the proposed law:

A church or religious organization, an organization supervised or controlled by or in connection with a church or religious organization, an individual employed by a church or religious organization while acting in the scope of that employment, or a clergy member or minister may not be required to solemnize any marriage or provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, or celebration of any marriage if such an action would cause the church, organization, or individual to violate a sincerely held religious belief of the entity or individual.

Let me put it this way: this law is a completely unnecessary and legally meaningless exercise in horn-tooting, cynically aimed at generating warm fuzzy feelings in Plakon’s constituency in his next election cycle, which just happens to be 2016. It also a convenient soap box for other conservative legislators to climb on and give impassioned speeches about religious freedom and how much they value conservative principles and so forth.

But why is it so meaningless?

The First Amendment and Discriminating Churches

Let’s go back to the source material for any discussion of church and state: the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

It’s not “Congress shall only make some laws” or “Congress shall only make laws most of us agree with.” It’s no laws. None. No law can prohibit the free exercise of religion. While in reality it’s always more complicated than it should be, that’s the source material.

The First Amendment lets churches discriminate. A Catholic church can refuse to marry non-Catholics, or refuse to marry someone whose been previously divorced. A church can refuse communion to non-members, and refuse membership to those who refuse to ascribe to their beliefs.

While the Supreme Court hasn’t addressed the issue of churches refusing to perform same-sex marriage specifically, it has provided some very clear guidance about how the First Amendment will apply to churches in the context of religious discrimination. I

n a 2013 case the U.S. Supreme Court held that the “ministerial exception” allowed a church to fire a minister under circumstances that, in any other workplace, would be grounds for an employment discrimination lawsuit by the fired employee.

The minister was placed on leave from the church after becoming disabled. She threatened to file a lawsuit against the church under the Americans with Disabilities Act. The church then fired her because she had violated their religious belief that congregation members and ministers should resolve disagreements without lawsuits.

In any other workplace that would be considered “retaliatory firing” and would be grounds for a lawsuit. Here’s a money quote from the court’s opinion:

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.

RFRA both State and Federal

The Religious Freedom Restoration Act was passed in Congress in 1993, and was authored by conservative bastions Chuck Schumer and Ted Kennedy, and signed into law by republican favorite Bill Clinton. But, keep in mind that the RFRA only applies to the federal government, and not to states, since the Supreme Court said that it violates the 14th Amendment (the Amendment that has to do with federal and state powers).

But never fear – Florida has passed its own version of RFRA which is modeled on the federal law. Here’s what Florida’s law says:

  1. The government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, except that government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person:
    1.  Is in furtherance of a compelling governmental interest; and
    2. Is the least restrictive means of furthering that compelling governmental interest.
  2. A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief.

Let’s break that down:

The government (Uncle Sam) shan’t substantially burden a person’s (a minister) exercise of religion (by forcing a minister to perform gay marriages), even if the burden results from a rule of general applicability (a law that says every minister has to marry everyone who wants to get married). Florida courts have defined a “substantial burden” as something that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires.

So as long as a minister believes that his or her religion prevents them from performing a same-sex marriage ceremony, it’s a substantial burden and can’t happen under the law.


The law on this is clear: not only would the First Amendment protect a church from performing same-sex marriages it is doesn’t want to, Florida’s RFRA law would too. While I’d like to hope that logic and reason will prevail in the Florida Legislature to prevent the passage of unnecessary laws, I highly doubt it. Unfortunately in the mean time we’ll probably see a lot of oppotunistic grandstanding.