Fig leaf, smoke and mirrors, lip service, bait and switch.
It’s hard to pick exactly the right way to describe the attempt by Sens. Mitt Romney, R-Utah; Susan Collins, R-Maine; and Tammy Baldwin, D-Wis., to whitewash (there’s another!) the attacks on people of faith presented by the same-sex marriage bill being considered by the Senate.
As I and others (particularly Ryan T. Anderson) 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 them.
The misnamed Respect for Marriage Act, however, would erase the Defense of Marriage Act, the 1996 law that preserved man-woman marriage at the state and federal levels before it was rendered totally inoperative by the Supreme Court’s Obergefell and Windsor decisions.
Congress should not double down on the Supreme Court’s mistake, especially when the only practical effect of the bill would be to put a giant target on the backs of people and institutions of faith.
To be clear, there is no risk of any legally married same-sex couple losing any of their benefits or legal status. So the only reason to add Congress’ explicit blessing for such unions now is to cement same-sex marriage as national policy that can be used as a club by government agencies, such as the IRS, to deny traditional religious institutions tax-exempt status, licenses to assist in adoptions, and government funding and contracts.
Worse still, the Respect for Marriage Act would create a roving license for private parties to sue anyone who arguably is acting “under color of law” when providing government-funded or -regulated family services such as adoption and foster care.
Indeed, we’ve seen government actors hound faith-based adoption agencies out of major cities across America because of their views on marriage. That is, until the Supreme Court in the Fulton case called that out for what it is: unconstitutional discrimination.
But the House, which passed a version of the Respect for Marriage Act with no debate July 19, didn’t get that message and did nothing to address the undeniable concerns for religious liberty.
Some senators, however—namely Baldwin, Collins, and Romney—want to prop up this bad bill by offering an amendment that purports to address some of these concerns.
Don’t be fooled.
Bad lawyers draft excessively wordy amendments because they can’t help it, but cunning ones do it when they are trying to misdirect. Here, the amendment sponsors recite “factual findings,” “rules of construction,” “religious liberty,” and “respect” all over the place, but in ways that are meaningless because they either aren’t given any effect or are limited to irrelevance by other provisions.
Let’s address each obfuscation in the order in which they appear.
First: Baldwin, Collins, and Romney would amend the bill’s findings of fact to say that “Congress affirms” that people with decent and honorable beliefs about marriage are “due proper respect.” Note it never says that those beliefs include those once held by Democrat leaders such as Hillary Clinton, Barack Obama, and Joe Biden—namely, that marriage only can be the union of one man and one woman.
Moreover, the amendment speaks only about respecting people who hold “beliefs” when what is at stake is the ability to live and express those beliefs.
Second, the three senators’ amendment would add a rule of construction saying that no existing protection of religious freedom would be taken away. I suppose it would have been worse if the bill copied congressional Democrats’ Equality Act model and took away religious liberty protections by name.
But that is beside the point. The argument always has been that existing religious liberty protections are not enough to shield someone or an organization from the lawsuits, threats to tax-exempt status, etc. that would be unleashed by the bill. Additional explicit protections therefore are required.
Third, the amendment would allow faith-based institutions and nonprofits to decline to participate in a “solemnization or celebration” of a same-sex marriage. Again, this is a straw man. Opponents of the bill are not arguing that clergy would be forced to perform marriages in their houses of worship that contradict their faith, because the Constitution already protects against that.
This supposed protection would provide nothing that is not already guaranteed. And it doesn’t cover areas where forced participation in same-sex celebrations still occur, such as with private bakers, florists, photographers, and other wedding vendors.
Fourth, the three senators’ amendment would add a rule of construction saying the bill by itself would not deny tax-exempt status, licensing, grants, and contracts “not arising from a marriage.”
Although this amendment finally acknowledges that the issues with tax-exempt status, licensing, grants, and contracts we have been talking about are real, the “rule of construction” does nothing to address them.
Again, the argument always has been that the bill would set a national policy of same-sex marriage that would be used to paint those who disagree as unrepentant bigots who cannot be allowed to partner with government or retain tax-exempt status. A rule of construction does not provide an affirmative defense.
The drafters of these amendments are conjuring the illusion of religious freedom while undercutting it at every turn. Baldwin, Collins, and Romney are likely keenly aware that the First Amendment Defense Act proposed by Sen. Mike Lee, R-Utah, would meaningfully address many of the religious liberty defects, suggesting that they are features, not bugs.
Now we hear that Baldwin needs “more time” to work on the measure, which suggests the backlash is having an effect. But this also may be a ploy to try to sneak something in during a lame-duck session after the Nov. 8 elections, when voters already will have picked who will represent them, possibly producing new majorities in one or both chambers.
As my colleague from Heritage Action for America, Jessica Anderson, put it, “Members shouldn’t pass lasting policy on the way out the door.”
If senators are serious about religious freedom, they should reject the Baldwin-Collins-Romney amendment out of hand and look to Lee’s proposed amendment instead.
But even then, it only would move the bill from bad to less bad. One hopes Congress will drop the whole thing and just get back to legislating for the public good. But with this Congress, don’t hold your breath.
This piece originally appeared in The Daily Signal