Claiming the Respect for Marriage Act Protects Religious Freedom Is Silly, Foolish, and Dangerous

As the Respect for Marriage Act moves through Congress, there have been a variety of attempts to defend the religious freedom protections in the bill. These attempts all fail for one reason or another. Many of them are silly, foolish, and dangerous.

Here we take a look at one recent opinion piece in Deseret News, which makes certain claims about the Respect for Marriage Act — followed by specific rebuttals to those claims.

THE CLAIM:

“There are other reasons to hope for the passage of the Respect for Marriage Act since it would also codify into federal law some of the most robust religious liberty protections in a generation.”

THE REALITY:

These protections are not robust; they are pitiful. Mississippi’s Protecting Freedom of Conscience from Government Discrimination Act is an example of the “most robust” protections that have been enacted in a generation. This bill is a far cry from that.

Claiming this is among the “most robust religious liberty protections in a generation” is only possible by comparing it to a field where no protections exist! (Virtually no significant federal statutory religious freedom protections in the context of sexuality and marriage have passed Congress since the Obergefell v. Hodges Supreme Court decision).

This is also a misleading framing of the issue, because legitimate religious liberty protections have been introduced at the federal level in recent years, but not passed — usually because of Democrat opposition. For instance, the First Amendment Defense Act (much of which is included in Senator Mike Lee’s, R-Utah, defeated amendment to the Respect for Marriage Act) has not passed Congress as a stand-alone bill since Obergefell was decided. If Republicans had taken a stand and insisted Lee’s amendment be included as a condition of their support, they could have forced much stronger religious liberty protections into the bill.

Interestingly, the Deseret News piece recognizes the religious freedom issues unleashed by the Supreme Court’s same-sex marriage decision: “Obergefell set up a conflict between LGBTQ rights and First Amendment freedoms. And, soon enough, deciding the cases emerging from the conflict became something of an annual Supreme Court ritual.”

In light of that, only protections dealing with those types of challenges (which Lee’s amendment would have done) are acceptable. Why would the piece defend such weaker protections? Justifying the current text of the Respect for Marriage Act is an exercise in deciding which Americans we are going to abandon; it’s foolish and dangerous and leaves many other religious freedom victims hanging in the wind.

In sum, the Respect for Marriage Act only has “robust” religious freedom protections when comparing it to itself.

THE CLAIM:

“It would add new language to federal law guarding against threats to the tax-exempt status of traditional religious institutions and attempts to force religious institutions to perform or accommodate marriages that violate their own religious teachings.”

THE REALITY:

While this is “new language,” it still leaves the door open to the government cracking down on religious entities. It is only a rule of construction for how the bill should be interpreted in some instances; it doesn’t outright bar the revocation of tax-exempt status.

As Roger Severino observes: “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.”

THE CLAIM:

“[T]his act does not curtail the religious freedoms already provided under the Constitution and federal law. This may seem like a yawn, but in fact it’s important for reaffirming the religious freedom protections applicable under the Religious Freedom Restoration Act, namely that ‘Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.’”

THE REALITY:

The restatement of current religious freedom law will do nothing to stop the government from finding a “compelling interest” in eradicating discrimination on the basis of sex and/or sexual orientation (which this bill now makes more likely), and thus ruling against believers in Religious Freedom Restoration Act claims. If we want to protect religious freedom in this bill, actual protections like those in Lee’s amendment need to be included.

THE CLAIM:

“If a church or religious school, refuses to hold a same-sex wedding or related celebration, there is no ‘cause of action’ — meaning no one can sue. Churches or religious schools would not be required to perform or house or cater same-sex weddings. End of story.”

THE REALITY:

So what? No churches and religious schools are currently being forced to perform same-sex marriages. That’s a non-issue!

The real concern is with everything else surrounding one’s beliefs about marriage — such as a religious college that wants to enforce a code of conduct in its dorms to prohibit “couples” of the same sex. Such an exercise of one’s beliefs about marriage is NOT protected by the current text of the Respect for Marriage Act (which only protects acts related to “the solemnization or celebration of a marriage” — and only certain categories of potential victims at that) — despite claims that it is somehow a hearty protection for religious freedom.

The Deseret News piece seems to admit as much by pointing to the post-Obergefell litigation at the Supreme Court, which — notably — does NOT include a case of a pastor or church being forced to perform a same-sex marriage (but does include many other cases which remain UNPROTECTED by the Respect for Marriage Act).

As far as the cause of action is concerned, that’s only half of the problem. The reality is, this section of statute will explicitly exclude protections for many who need them and will chill the religious exercise of many others.

THE CLAIM:

“Some have asked whether this language would cover someone like Jack Phillips, the cake baker from Colorado who refused to bake a cake for a gay wedding. After all, the language of the amendment reads ‘religious organizations’ and doesn’t address businesses or individuals. First, the Respect for Marriage Act only applies to those acting ‘under color of state law’—that is, to those who officially act for the government.”

. . .

“[T]he federal Respect for Marriage Act wouldn’t affect Phillips’ situation one way or another because he’s not a government actor.”

THE REALITY:

The third sentence above — that this entire bill “only applies to those acting ‘under color of state law’” — is simply not accurate. The “under color of law” requirement applies to government recognition of same-sex marriages as discussed in Section 4 of the Respect for Marriage Act and does not directly apply to the rest of the bill.

The fact that the religious liberty protections in Section 6 are too narrow and do NOT include people like Jack Phillips still stands as a major point of concern in and of itself. It doesn’t matter whether Phillips is considered a government actor. As these narrow protections are evaluated by courts and decision-making authorities, the very passage of the bill itself will give courts more reason to find a "compelling govt interest" and a national public policy that they can use to overrule religious freedom claims.

Jack Phillips and people like him are not given protection under this bill, period! And this reality will certainly “affect” his “situation.”

THE CLAIM:

“isn’t all the amendments to the Respect for Marriage Act provide in protections for religious believers.

One of the most important passages reads as follows:

(1) No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.

(2) 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.

Codifying these words into federal law matter[s] for a simple reason: they reject the notion that believers in traditional marriage and their religious practices are based on bad or dishonorable motives. 

That stands in stark contrast with discriminatory practices based on racist beliefs. The language makes it a matter of federal law that those who believe in traditional marriage do so ‘based on decent and honorable religious or philosophical premises’ — not because they are bigoted.

This matters in a court of law, and it also helps answer the exchange between [Justice Samuel] Alito and the solicitor general during Obergefell arguments related to tax exemption of religious institutions that believe in traditional marriage.”

THE REALITY:

Putting some fluffy words into the “findings” section of this bill will do nothing to stop the train barreling down the tracks toward people of faith.

First off, this language is in the findings and does nothing substantive in the bill.

Second, the language itself isn’t even that strong (they could have said “people of faith who disagree with same-sex marriage are decent and honorable people who deserve respect” — but they didn’t say that — and in the face of the radical same-sex marriage policy contained in the bill overall, that would have been entirely reasonable to include).

Third, such language will not stop many government actors from doing precisely the opposite of this language — using this bill to find a compelling government interest in eradicating discrimination on the basis of sex and/or sexual orientation and ruling against religious believers’ claims.

Finally, it’s beyond clear that many in key positions in government and culture now increasingly view anyone who adheres only to man-woman marriage as “bigoted,” and the insertion of this language in the bill will not stop that trend. Indeed, passage of the bill itself with such pitiful religious freedom protections will only fuel the marginalization of anyone who dissents from same-sex marriage.