This week, Roger Severino, Heritage’s Vice President of Domestic Policy and The Anderlik Fellow, breaks down the so called “Respect for Marriage Act.”
Michelle Cordero: From The Heritage Foundation, I'm Michelle Cordero, and this is Heritage Explains.
Cordero: This summer in the wake of the Supreme Court's decision to overturn Roe v. Wade, Congress introduced the Respect For Marriage Act.
Speaker 2: As abortion rights advocates and Democratic lawmakers continue to protest the Supreme Court's decision to overturn Roe v. Wade, the House is voting on a bill to protect marriage equality, out of fear the conservative high court could revisit other landmark decisions.
Speaker 3: It simply says each state will recognize the other state's marriages and not deny a person the right to marry based on race, gender, sexual orientation.
Cordero: The legislation passed the House with the support of 47 Republicans. It now moves to the Senate where it would need just 10 Republican votes to pass.
Cordero: Final passage would mean states are no longer allowed to define and recognize marriage as a legal union between a man and a woman. Instead, they would be forced to recognize any union between two individuals, regardless of sex, as marriage. So does our country need a law to protect same-sex marriage? Did the Supreme Court decision in Dobbs v. Jackson threaten same-sex marriage? What about the Americans who believe that marriage is between a man and a woman? What would this bill mean for them?
Cordero: Today, Roger Severino, Heritage's vice president of domestic policy and The Joseph C. and Elizabeth A. Anderlik Fellow, explains after this short break.
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Cordero: Roger, thank you so much for joining us today.
Roger Severino: Thank you for having me.
Cordero: My first question is, does the country need a national law guaranteeing the right to gay marriage? Didn't the Supreme Court already rule on this in Obergefell? And so what makes this different?
Severino: You're right to point out that Obergefell is what's governing today, and that's not really going to be changing. I don't see a scenario where the question presented there will be presented again anywhere in the near or intermediate future. So, what is left? Why is it that the liberals in Congress are pushing this to try to codify a version of same-sex marriage in federal law when all the rights and benefits that came from the Obergefell decision are required to be extended to same-sex couples? Nothing would change on the ground. So what's left?
Severino: Well, to put salt on a wound and to target people of faith who disagree, there's still a sizeable number of people in this country who believed the same thing that Barack Obama, Joe Biden and Hillary Clinton did just not so long ago, good number of years. But they believe that marriage is a union of one man and one woman. And those views deserve to be treated with respect. They come from honorable premises and they reflect the truth about marriage, which there has to be space for people to continue to express those beliefs, especially those of faith. And what this bill is designed to do is to tar such people as being unfit to be in polite society and out of the public square.
Cordero: Why is Congress taking this up now? Just to back up a little bit, what prompted this?
Severino: The Supreme Court decision in Dobbs dealt with abortion. And the abortion precedents are based on a foundation of sand, using substantive due process, which is a legal concept that's not really found in the Constitution. Which liberal activist judges over the decades have used in all sorts of areas, including same-sex marriage, to invent new rights that are not actually in the Constitution.
Severino: So when Dobbs said abortion is one of these invented rights, we're returning to the actual text of the Constitution, the majority went out of its way to say it was just limited to the question of abortion and human life. It's a very unique circumstance. Justice Thomas, who's an amazing jurist, wrote separately to say that we should reevaluate every case that was built on the invention of substantive due process, which included the same-sex marriage decision. Substantive due process is not the only source of rights under the Constitution, but it's the one that's been abused the most by the left. And it should be revisited.
Severino: That does not mean that there's any vehicle that would come back and say, people who are currently in same-sex marriages, their benefits are at risk. That's nonsense. So taking a very theoretical statement from one Justice on the court, the left has run with it to try to call some sort of alarmism about marriage and push this wedge issue for political purposes. Again, the practical effect if this becomes law, will have nothing to do with the benefits of same-sex couples. It'll have everything to do with excluding people of faith from their tax-exempt statuses for houses of worship, from adoption agencies that believe that the best most conducive place for a child in placement would be with a married mother and father, and for those who contract or receive grants from the government who want to live according to the beliefs with respect to marriage. Those are the groups who are going to be targeted. And this law would actually create this bludgeon, which is a private right of action, which means individuals could sue on their own in federal court to hound these groups. And that's really the object of this stunt.
Cordero: So to be clear, there's no risk currently present that legally married same-sex couples could lose any of their benefits or legal status?
Severino: Absolutely. There's no risk that they would lose any benefit. The federal government adopted and adapted to the Obergefell decision. All the state's governments did. That's now the status quo. That would not change by this law. And I see no case coming forward that would change that either. So this is really targeted at exclusion for political purposes.
Cordero: Yes. If the bill passes, it's just an assurance to the left.
Severino: No, it's not. Assurance is not needed. That's the thing. What it is a weapon for the left that will be used to go after people of faith. And this how it works. When you have an established national policy endorsed by Congress through the representatives, that carries a tremendous amount of weight for all sorts of other areas, especially when we're talking about civil rights laws.
Severino: We had a case from the '80s with respect to tax-exempt status for a violator of a civil rights law. They were deemed not to be a charity, and they lost their tax exempt status. And the Supreme Court said, because there's an established national policy against that type of discrimination that you lose your tax-exempt status and there's no recourse. That same tool will be deployed against people who believe that marriage is a union of one man and one woman, which is very different than other types of beliefs that are protected by statutory anti-discrimination laws.
Severino: This is a view, again, that's based on love of what is the best most conducive way for human flourishing in raising children and supporting the institution that has been proven most effective at that. And that is having the mother and father together in an enduring lifelong commitment so that they're there for any children that their union conceives.
Cordero: All right. So, where does the legislation stand now? Are there Republicans who actually want to vote for this?
Severino: There were some Republicans that voted for it in the House. And it passed the House, which caught a lot of folks in the marriage movement a bit flatfooted. We have been fighting most recently over the definition of what is a man and what is a woman, with the transgender ideology in sports, in medicine, intimate facilities, et cetera. But the left was very crafty. They latched onto the pretext of what happened in the Dobbs decision to say that somehow same-sex marriage benefits are at risk when they are not, and pushed a vote on this bill to codify same-sex marriage in about 27 hours from Introduction to vote, which gave few ... It was a sneak attack move and caught a lot of people by surprise. People did not think through the ramifications, and some people voted for who I think now regret it in the House.
Severino: In the Senate, there's been some more time to actually present the arguments that nothing's done on the ground, none of these benefits are at risk. What this is targeting people of faith and putting a big target on their backs. And now we've seen the tide shift. What they thought was going to be a quick walk through the Senate has been stymied. People have been asking hard questions. And if the Democrats in Congress thought that there was a way to get a majority vote for this bill, they would've very likely done it before the elections because this is really a political ploy, is what it is. They don't have that, and that is very comforting for the marriage movement. It doesn't mean we're out of the woods yet. There's still the possibility of some action during the lame duck because the sponsors, Baldwin and Collins, have said they're going to push for it after the election.
Severino: That's a sign of weakness. If they could have moved it, they would've moved it before the election. There's a risk that in lame duck, when people are heading out the door, they will violate some of their campaign promises. Many folks were elected on a platform supporting marriage, and they may be tempted on the way out to try to get in the good graces of the cocktail circuit and violate their promises. They should not do that. People should keep to the right policies.
Severino: The right policy here is that the last word from Congress, it should be left undisturbed. And Obergefell handles already the issues of benefits for same-sex couples which are not at risk. So Congress should not go out of its way to slap people of faith, and especially not when Congress is going out the door in a lame duck session.
Cordero: Roger, thank you so much for sitting down with me to break down this important issue. We'd love to have you back on, but hopefully Congress drops this and we don't have to.
Severino: Hopefully they will.
Cordero: Thank you for listening. And as always, if you loved this episode or found it helpful, we would love you forever if you shared it with a friend or on social media. It's the best way to grow our audience. Tim is up next week. We'll see you then.