Why Senator Ernst Is Wrong That the Respect for Marriage Act Protects Religious Freedom
Facing intense backlash back home, Senator Joni Ernst (R-Iowa) recently attempted to justify her vote for the Respect for Marriage Act.
Here’s what’s wrong with her defense, with our reply in bold italics in response to the text of her letter:
Thank you for contacting me about the Respect for Marriage Act. It is important for me to hear from folks in Iowa on policy matters such as this.
As you know, the Respect for Marriage Act (RMA) was introduced in the House of Representatives on July 18, 2022. This legislation would require state and federal governments to recognize the validity of state-sanctioned same-sex and interracial marriages in the United States. This bill passed in the House with a vote of 267-157, including the support of 47 Republican members.
There has been a lot of confusion about what this bill does and does not do. In fact, substantial edits were made in the Senate from the version that passed the House. I want to take a moment and talk to you about this.
First, the RMA does not provide a federal right for same-sex marriage.
This is false. By amending the current Defense of Marriage Act in federal code at 1 U.S.C. 7 (which only recognizes marriage as between one man and one woman) and changing it to recognize any marriage recognized by a state (including same-sex marriages), the Respect for Marriage Act DOES provide a federal right for same-sex marriage.
The RMA does not enact the Supreme Court case of Obergefell v. Hodges, the case that establishes the right to marry for same sex couples. In fact, if the Supreme Court was to overturn Obergefell, the RMA would not stop any state from once again refusing to issue marriage licenses to same-sex couples. Instead, this legislation would require states to recognize same-sex marriages entered into in other states.
This is also false. By requiring states to recognize marriages (including same-sex marriages) entered into in other states, the RMA forces states to override their own public policy decisions. This would happen even if Obergefell were overturned.
The RMA does not require religious institutions to recognize same-sex marriage. For the first time in federal law, the RMA contains a specific protection for religious non-profit organization including churches, religious schools, and faith-based social agencies to prevent them from being forced to provide goods, services, or accommodations in connection with the celebration of a same-sex marriage.
As I have already noted elsewhere, this is an irrelevant “protection,” because no churches and religious schools are currently being forced to perform same-sex marriages. The real concerns are 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).
The bill flatly prohibits any litigation for such a denial. As a result, if a church or religious school refuses to hold or cater a same-sex wedding or related celebration, they are explicitly protected from a lawsuit.
This doesn’t actually protect faith-based schools.
As I’ve already explained, the bill only protects entities “whose principal purpose is the study, practice, or advancement of religion.” Those who don’t fit that definition won’t be protected. Further, it only protects them in the context of solemnizing marriages. But no one is forcing adoption agencies to solemnize marriages. They are forcing them to modify the way they conduct their operations, which is driven by their beliefs about marriage — such as not wanting to place children with same-sex couples. 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”).
So, claiming that religious schools are protected from lawsuits and don’t actually need protection makes this argument irrelevant and weak.
The RMA only applies to government actors, not private individuals or churches. Because the bill only governs state and federal actors, these are the only entities that can violate the law.
This is irrelevant to the main point, which is that this bill still leaves religious entities hanging out to dry. 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 baker 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 government 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!
The bill does not provide new grounds on which to sue churches, non-profit religious organizations, and people of faith based on their religious beliefs this includes non-profit adoption agencies, which are further protected by the Supreme Court decision in Fulton v. City of Philadelphia.
This isn’t true. By failing to protect them (see material about religious schools several paragraphs above), it does create new grounds to sue them.
The Fulton case involves one narrow issue. Based on seven years of litigation after Obergefell, there have been a number of issues raised. No one case has settled them. Senator Ernst had an opportunity to help settle them here by insisting on the inclusion of Senator Mike Lee’s (R-Utah) religious freedom amendment as a condition of her support, but refused to do so.
Despite for-profit businesses not being included in the bill, I voted in favor of an amendment put forward by Senator Mike Lee (R-Utah) that would enshrine additional protections for the freedom to operate a business according to your religious beliefs.
Here I can say the same things about Senator Ernst that I can say about Senator Thom Tillis (R-N.C.): Senator Ernst only voted for the Lee amendment as part of a stand-alone vote. She refused to make its adoption a condition of her support for the underlying bill. If she felt the Lee amendment was necessary, she would have voted against the overall bill on final passage, because it did not include the Lee amendment. Based on her votes, Senator Ernst did not believe the people Lee’s amendment would have protected — like Jack Phillips and florist Barronelle Stutzman — deserve protection in this bill. If she had taken a stronger position on the Lee amendment, she could have forced its inclusion into the final legislation.
The RMA maintains the status quo in Iowa. Should the RMA be signed into law, the status of same-sex marriage in Iowa will not change. The way churches and for-profit businesses operate will not change.
Not true. See above. They will not be sufficiently protected.
By passing this bill, the Senate has reaffirmed vital religious liberty protections and added additional new protections for non-profit religious institutions.
One can claim these are “new,” but also note that they are woefully inadequate and leave victims vulnerable to lawsuits or government punishment.
The RMA both protects and preserves religious liberties, while also ensuring that all married couples are entitled to the rights and responsibilities of marriage as has been the case in Iowa for over a decade, without any concrete attempt to change the Iowa Constitution.
After thoughtful and careful review of the changes made in the Senate, I voted in favor of the Respect for Marriage Act, which passed the Senate on November 29, 2022. The bill was also supported by 11 other Republicans. My decision was not taken lightly and included thoughtful consideration regarding the protection of religious liberties. I also considered the vast amount of positive changes to the bill from the version that passed the House earlier this year.
I know some of us will not see eye-to-eye on this vote, but I do respect your opinions and beliefs. Feel free to contact my office with any additional questions, as I always enjoy hearing from Iowans.”
This bill totally fails to protect religious liberty.
Travis Weber, J.D., LL.M. is Vice President for Policy and Government Affairs at Family Research Council.