How did Senate liberals convince 12 Republicans to break ranks and endorse a same-sex marriage bill that puts a giant target on people of faith?
It took help from (some) people and organizations of faith, such as the National Association of Evangelicals and, most surprisingly, the Church of Jesus Christ of Latter-day Saints, which gave defecting senators enough political cover to vote against the interests of the people who put them in office.
Additionally, a subset of these advocates, including law professors I respect, raise sophisticated legal arguments purporting to show that the bill actually improves the state of religious liberty in America. This piece demonstrates why this view is grossly wrong.
As I and others have argued for years, marriage is the exclusive, lifelong, conjugal union between one man and one woman, and any departure from that design hurts the indispensable goal of having every child raised in a stable home by the mom and dad who conceived him.
I won’t speculate as to why some of the faith voices who were once staunchly opposed to recognizing same-sex marriage have flipped on the issue. But flipped they have.
Seeking to entrench the Supreme Court’s ruling in Obergefell v.Hodges and beyond in national law—while declining to press the sociological, biblical, and biological arguments favoring conjugal marriage—suggests these advocates believe that further recognizing same-sex marriage in law is a positive social good. If so, they should own up to that in candor and out of respect to those they seek to influence.
But whatever the motivation, the arguments raised ultimately must be judged on their own merits and they demand a thoughtful and serious response.
Here are seven claims about the proposed Respect for Marriage Act and my response to each.
Claim No. 1: Because the bill’s findings characterize beliefs in man-woman marriage as worthy of respect, the legislation would provide religious institutions legally significant protections against being treated by government as the equivalent of bigots.
Response: False. First, the issue is not the ability to believe in man-woman marriage, but the ability to live out those beliefs meaningfully in society and not be labeled a bigot by the government for doing so.
Respect for mere beliefs in man-woman marriage gets people of faith little in this context. But more fundamentally, the bill doesn’t go even that far. It reads:
Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.
Here is an accurate translation: “Diverse but wholly unspecified beliefs about the role of gender in marriage (whatever that means) are held by acceptable people based on acceptable premises. Therefore, such acceptable people who hold acceptable beliefs about marriage are due an acceptable level of respect.”
It is hard to imagine crafting a more legally meaningless statement than that. The bill’s sponsors took great pains to avoid saying precisely what the bill’s defenders erroneously claim.
Nowhere in the bill do the terms conjugal marriage, traditional marriage, biological marriage, biblical marriage, natural marriage, historical marriage, husband-wife marriage, man-woman marriage, or any other possible variation appear .
Yet the bill does say some things quite clearly and explicitly—namely, “same-sex couples … deserve to have the dignity, stability, and ongoing protection that marriage affords to families and children.” Now a statement like that does some real legal work, but in precisely the opposite direction.
Claim No. 2: The bill can’t be used as a basis for the Internal Revenue Service to deny the tax-exempt status of religious organizations that adhere to and act upon their beliefs in man-woman marriage.
Response: False. Although the bill clarifies through a rule of construction that it does not, by its own operation, revoke tax-exempt status for dissenting religious organizations, it gives ample grounds for the IRS and any other tax authority to do the actual dirty work.
When Congress passed the Civil Rights Act of 1964, no one argued that it automatically revoked tax-exempt status for religious schools that engaged in racial discrimination. But the IRS did exactly that six years later and in 1983 the Supreme Court affirmed the action in the case of Bob Jones University v. U.S. The high court relied on the fact that Congress established a “national” or “fundamental” policy against racial discrimination through the Civil Rights Act following the court’s 1954 decision in Brown v. Board of Education.
Congress could have added the exact same rule of construction contained in the Respect for Marriage Act to the Civil Rights Act of 1964 and it would not have prevented the IRS’ revocation of tax-exempt status, because the governmental interest in eradicating racial discrimination would have been deemed to be just as compelling.
President Barack Obama’s top lawyer at the Justice Department admitted to the Supreme Court during the Obergefell argument that revoking the tax-exempt status of religious organizations that hold fast to man-woman marriage was “going to be an issue.”
No rule of construction under the marriage bill will make this issue go away, but an affirmative defense, such as under Sen. Mike Lee’s proposed First Amendment Defense Act, would.
The marriage bill’s sponsors easily could add a clause saying: “No federal, state, or local taxing authority shall revoke any tax-exempt status or tax benefit of any nonprofit organization because it believes or acts on the belief that marriage is the union of one man and one woman.” This simple protection would take the tax issue entirely off the table, which is precisely why the bill’s sponsors steadfastly refuse to adopt it.
Claim No. 3: Democrats’ marriage bill can’t be used as a basis for government bureaucrats to deny grants, licenses, accreditation, or contracts to religious organizations that adhere to and act upon their beliefs in man-woman marriage.
Response: False. Identical to the question of tax status, although the bill wouldn’t by its own operation revoke licenses, grants, accreditation, or other benefits for religious organizations that hold fast to man-woman marriage, the bill similarly fails to provide any affirmative defense to prevent bureaucrats from using it as a basis for doing so.
Indeed, religious adoption agencies in particular already have been successfully excluded from adoption programs by multiple government agencies, simply because they follow the belief that every child has a right to both a mother and a father.
Claim No. 4: Because the proposed Respect for Marriage Act explicitly would preserve application of the Religious Freedom Restoration Act, this concession and existing court precedents are enough to address any potential harm to religious liberty.
Response: False. Although it is some consolation that the sponsors didn’t explicitly strip protection under the Religious Freedom Restoration Act from the bill, it is cold comfort. Neither that 1993 law nor the Supreme Court’s decisions in the Fulton and Masterpiece Cakeshop cases would prevent targeting of faith-based organizations, including schools and adoption agencies, along the lines discussed. That’s because the bill before Congress sets the stage for courts finding a compelling national governmental interest in eliminating same-sex marriage “discrimination.”
So long as government actors enact antidiscrimination policies regarding same-sex marriage without exceptions (and avoid showing explicit animus to people of faith on the record), religious institutions will face these risks, which underscores the need for explicit affirmative defenses.
Claim No. 5: Because the Respect for Marriage Act, if passed, would apply to private parties only when acting “under color of state law,” the risk is minimal that religious organizations would be deemed government actors. But even if they are deemed state actors, they already would be bound by the Supreme Court’s Obergefell ruling in the exact same way as under the legislation.
Response: Partly true, partly false. Yes, the risk that an average religious institution would be deemed a state actor is rather low; however, the question is fact intensive. Religious nonprofit contractors that provide, for example, supervised housing for immigrant families detained on behalf of the Department of Homeland Security, adoption services on behalf of government agencies, or prisoner rehabilitation services mandated by a criminal court might be deemed sufficiently governmental to limit a religious organization’s freedom on marriage questions that could arise in each of those settings.
The contention that the Obergefell ruling already applies fully to all potential examples of religious state actors is premised on the idea that the civil rights law known as Section 1983 already provides private rights of action regarding same-sex marriage that are identical to those under the proposed Respect for Marriage Act. If true, it certainly begs the question: Why do the sponsors of this legislation doggedly insist on a private right of action that is 100% unnecessary?
In actuality, the Respect for Marriage Act should make it easier to sue religious organizations deemed state actors on marriage, because the legislation calls out same-sex marriage by name while Section 1983 (adopted in 1871) does not.
Section 1983 protects against a “deprivation” of constitutional rights, privileges, and immunities, and it allows suits by “the party injured.” By contrast, the legislation before Congress would prevent “denial” of any “claim arising from” a same-sex marriage specifically and would allow suits by any person “harmed” as a result.
These textual differences may seem nuanced from a lay perspective, but they are the stuff of an enterprising lawyer’s dreams. A more commonsense point applies: When Congress creates an explicit right to sue on a particular issue, it prompts more lawsuits on that issue regardless of background law.
Claim No. 6: The proposed Respect for Marriage Act, if passed, would provide additional protections for explicitly religious organizations to decline to participate in same-sex marriage celebrations and would bar activist lawsuits on this question.
Response: True, but largely irrelevant. If the First Amendment means anything, it means that government is barred from ordering a house of worship to solemnize or celebrate a same-sex marriage within its chapel, church, synagogue, or mosque. Such lawsuits would readily lose, and any subsequent attempts to relitigate the question eventually would lead to sanctioning of lawyers for filing frivolous lawsuits.
Although the bill may provide some explicitly religious nonprofits additional clarity outside of the house-of-worship context, few if any religious social service organizations would benefit, including adoption agencies and marriage counseling organizations. That’s because they don’t have anything at all to do with wedding solemnization itself (the only thing ostensibly protected by the bill).
This explains why controversies and lawsuits over same-sex marriage celebrations have focused on bakers, photographers, web designers, printers, meeting halls, bed and breakfasts, and florists—with decidedly mixed success for people of faith.
These documented and repeated examples of people of faith being harassed and driven out of business today over forced same-sex marriage celebrations get no protection at all under Democrats’ bill.
Claim No. 7: The legislation, as amended, would not recognize polygamous marriages.
Response: True and false. The latest version of the bill would not grant federal recognition of “marriages between more than two individuals,” which would cover unions where three or more persons are married to each other as one family unit.
But the bill leaves open the possibility that one person can be in multiple two-person marriages at the same time, which would trigger federal recognition if a state legally were to recognize such consensual, bigamous unions as separate family units.
Tolerance and mutual understanding are not achieved by putting people who believe in man-woman marriage on the same plane as people who reject interracial marriage. That is precisely what the Respect for Marriage Act would do, despite no appreciable risk of same-sex couples’ losing any legal status or benefits.
This is a gratuitous swipe at people of faith that can’t be recast as doing them a favor.
Christians, Muslims, and Jews with sincere, historic, reasonable (and true) beliefs about human sexual morality and identity have been under accelerated attack by activists and government ever since the Supreme Court’s 2015 ruling in Obergefell, despite assurances by same-sex marriage advocates that a “live and let live” world would follow that decision.
The proposed Respect for Marriage Act would supercharge these attacks. The gestures toward religious liberty in the most recent version of the bill do not change this fact.
This piece originally appeared in The Daily Signal