Since states initially began recognizing same-sex marriage, one of the primary questions has been whether recognition of same-sex marriage requires individuals, who officiate at weddings or issue marriage licenses but object to same-sex marriage on religious grounds, to provide those services to same-sex couples. Obergefell v. Hodges: Federal Constitutional Recognition of Same-Sex Marriage

In its landmark decision, Obergefell v. Hodges , the U.S. Supreme Court struck down state bans on same-sex marriage as unconstitutional under the Fourteenth Amendment of the U.S. Constitution. The issues presented to the Court included whether states were required to permit same-sex couples to marry in their states and whether states were required to recognize same-sex marriages formed in other states, but did not include any issue directly affecting the manner in which such marriages were formed or what legal rights such couples may have beyond the ability to marry itself. This dual role of religious officiants has raised concerns that ministers, because of their concurrent role for civil requirements, may be forced to solemnize marriages to which they object. Notably, the Court's decision in Obergefell specifically addresses the right of same-sex couples to enter " civil marriage[s] on the same terms and conditions as opposite-sex couples," and does not require or suggest that religious marriages must include all couples. Questions also arise regarding whether an individual working for the government and having job duties related to officiating or facilitating civil marriages could be required to do so for same-sex couples. Balancing the First Amendment with Nondiscrimination Laws Under Supreme Court Jurisprudence

A number of Supreme Court decisions have indicated that First Amendment rights are not absolute when weighed against nondiscrimination requirements. Implications of Hobby Lobby and the Applicability of RFRA Protection for Businesses with Religious Objections

Prior to the Court's decision in Hobby Lobby , it may have seemed unlikely that business owners could claim protection for their religious beliefs. Religiously Affiliated Social Service Providers' Participation in Publicly Funded Programs

Concerns about religious objections to same-sex marriage have also manifested in the context of government funding programs that provide financial assistance to private entities, including organizations with religious objections to same-sex marriage. It may also rely on the conscience clause model that has been used to protect entities with religious objections to abortion that receive federal funds under certain health care programs. Although the Supreme Court has not considered challenges to these provisions, the Court has permitted religious entities to receive federal funds directed for secular purposes with certain conditions in a number of other cases. Potential Effects for Tax-Exempt Status

Another potential issue, which was raised at oral argument in Obergefell and recently addressed by Internal Revenue Service (IRS) Commissioner Koskinen in testimony before Congress, is whether churches and other religious entities could be denied federal tax-exempt status if they act in opposition to same-sex marriage (e.g., a church that does not perform same-sex marriages or a religious school that refuses to provide same-sex couples with married student housing). One qualification for Section 501(c)(3) status and Section 170 eligibility is that an organization cannot engage in activities that are illegal or violate a well-established, fundamental public policy. This is referred to as the "illegality doctrine." First Amendment's Religious Clauses

The first question is whether a religious entity's First Amendment rights would be violated if it were denied Section 501(c)(3) status due to actions that were based on sincerely held religious beliefs. With respect to the Free Exercise Clause, the Court explained that the government can justify a burden on religion by showing it is necessary to accomplish a compelling governmental interest that cannot be achieved by less restrictive means. As such, it is not clear whether the Bob Jones analysis would support the denial of tax-exempt status under the illegality doctrine for churches and other houses of worship acting on sincerely held religious beliefs, particularly in light of the constitutional protection of noninterference in internal matters of religious institutions discussed above. This raises two fundamental issues: (1) whether a Section 501(c)(3) organization that acts in opposition to same-sex marriage would be in violation of a law or public policy and thus trigger the doctrine's application; and (2) if so, whether the organization's specific actions would justify the denial of tax-exempt status under the doctrine. Illegality Doctrine's Application in the Context of Same-Sex Marriage

The first issue is whether a Section 501(c)(3) organization's action in opposition to same-sex marriage would be in violation of a law or public policy and thus trigger the application of the illegality doctrine. The Commissioner did, however, leave open the possibility that the IRS might revisit the issue in response to future legal and policy developments.
The U.S. Supreme Court's landmark decision in Obergefell v. Hodges in June 2015 held that the Fourteenth Amendment of the U.S. Constitution required states to issue marriage licenses to same-sex couples and to recognize same-sex marriages formed in other states. The Court's decision in Obergefell does not directly address incidental claims related to religious freedom in the context of same-sex marriage. However, the case has generated a number of other questions regarding potential implications of the Court's decision, particularly with respect to the rights of individuals or entities with religious objections to same-sex marriage. Among the issues raised are the obligation of marriage officiants to perform or facilitate same-sex marriage ceremonies; civil rights protections for same-sex couples and religious objectors; potential protections for religious social service providers in federally funded programs; and the impact on tax-exempt status of religious entities that object to same-sex marriage.
Questions related to the solemnization of same-sex marriages involve whether individuals who serve as marriage officiants, either in religious or civil ceremonies, would be required to solemnize marriages to which they object. Although long-standing Supreme Court jurisprudence indicates that religious officiants would be protected under the First Amendment, the protections available to civil servants whose duties include issuing state marriage licenses or officiating at civil ceremonies are not as straightforward, and may depend on a number of other factors.
Expansion of constitutional protection to same-sex couples also may have implications under civil rights law and certain federally funded social service programs. Under federal and state civil rights provisions, questions have involved whether owners of public accommodations may be required to serve same-sex couples; whether health care providers may be required to provide medical treatment regardless of a patient's sexual orientation; and whether religious institutions must provide housing to same-sex couples. Generally, courts are finding that a business must provide the same services to same-sex couples as it provides to opposite-sex couples, or that the business must not offer services that it would object to offering to same-sex couples. In the context of social service programs, some religious organizations receive federal funding to provide certain social services (e.g., adoption). However, concerns have been raised regarding whether such organizations could decline to serve same-sex couples based on their religious objections to same-sex marriage.
Finally, the Court's decision may affect religious entities' tax-exempt status under Section 501(c)(3) of the Internal Revenue Code. One qualification for Section 501(c)(3) status is that an organization cannot engage in activities that are illegal or violate a fundamental public policy. This is referred to as the "illegality doctrine." A question that has been raised in light of the Obergefell decision is whether religious entities that act in opposition to same-sex marriage could be in violation of the doctrine. In testimony before Congress in July 2015, the Internal Revenue Service (IRS) Commissioner stated that the IRS would not currently apply the doctrine to religious entities acting in opposition to same-sex marriage, but left open the possibility that the agency could change its position in response to future legal and policy developments. If the doctrine were to apply, one question that might arise is whether a religious entity's First Amendment rights would be violated if its tax-exempt status were revoked due to actions based on sincerely held religious beliefs. The Supreme Court has held in another context that denial of tax-exempt status of religious schools under the illegality doctrine may be permissible under the First Amendment, so long as the law or policy requiring the denial advances a compelling governmental interest that could not be served by less restrictive means and is based on neutral, secular criteria. Notably, the Court's holding did not address the doctrine's application to houses of worship, thus leaving open the possibility that they may be afforded greater protections.