Why Senator Young Is Wrong That the ‘Respect for Marriage Act’ Protects Religious Liberty

Senator Todd Young (R-Ind.) recently attempted to justify his vote for the Respect for Marriage Act.

Here's what’s wrong with his defense, with our reply in bold italics in response to the text of his letter:

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Dear ____,

Thank you for contacting me regarding the Respect for Marriage Act. I appreciate hearing from you on this issue.

As your Senator, I respect that Hoosiers have strong and diverse feelings on how the federal government should view civil marriage. Ultimately, all Hoosiers want to be treated with dignity and respect. Those who believe marriage was created by God as a sacred union between one man and one woman which includes many people of faith [who] want to be treated with dignity and respect. They want to be able to worship and teach the tenets of their faith without fear of reprisal. They don’t want to be called bigots, live in fear of being ostracized, or suffer endless lawsuits because of their beliefs.

Additionally, same-sex couples many of whom are also people of faith want to be treated with dignity and respect as well. In the wake of the Supreme Court’s 2015 decision in Obergefell v. Hodges to legalize same-sex marriages, they want to enjoy the same legal protections of civil marriage as married men and women. They don’t want to live in fear of their families being ripped apart by a future court decision.

This evenhanded presentation of the bill sounds nice, but it’s not what the bill will accomplish. The overwhelming policy of the bill is to send the signal that same-sex marriage is “the” legitimate pathway ahead, and comparing most of the bill with the minimal religious liberty protections it contains, we can be under no illusions that this bill puts its thumb on the scale in favor of same-sex marriage and the host of sexual ideologies that go with it, and doesn’t adequately protect religious freedom at the same time.

In an effort to bring the United States government closer to treating both groups with dignity and respect than we ever have in our history, on November 29, 2022, I voted to pass H.R. 8404, the Respect for Marriage Act, as amended.

This doesn’t bring the government “closer” to treating “both groups” with dignity and respect. As mentioned above, it advances a policy of same-sex marriage and throws religious freedom protections under the bus. Senator Mike Lee’s (R-Utah) proposed religious freedom amendment would have helped treat religious entities with respect. Senator Young could have made its inclusion a condition of his support for the bill. He chose not to.

This legislation will repeal and replace provisions of the 1996 Defense of Marriage Act (DOMA) that defined marriage and “spouse” for purposes of federal law to exclude same-sex couples. Additionally, H.R. 8404 will prohibit states from failing to recognize marriages performed in other states on the basis of sex, race, ethnicity, or national origin. The bill also provides for important religious liberty protections not available under current law.

This bill does not provide for “important” religious freedom protections currently “not available under federal law.” These protections are pitiful. Claiming these are “important” is only possible by comparing them 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).

Mississippi’s Protecting Freedom of Conscience from Government Discrimination Act (which has been passed into law) and the First Amendment Defense Act (introduced in Congress but not passed) are examples of important protections. Senator Young could have chosen to support such strong protections but chose not to.

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 Democratic opposition. For instance, the First Amendment Defense Act (much of which is included in Senator Lee’s defeated amendment to the Respect for Marriage Act) has not passed Congress as a stand-alone bill since Obergefell was decided. If Republicans like Senator Young 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.

On December 8, 2022, the House of Representatives passed H.R. 8404, and the bill currently awaits consideration by the president.

Some people in my own party though, notably, I’ve also received quite a bit of encouragement have let me know they are disappointed in my vote. I would never try to persuade people to change the teachings of their faith, but I can explain why I think Hoosiers with deeply-held faith convictions should not be fearful of this legislation. In fact, the explicit protections in this proposal offer far more in the way of religious liberty protections than currently under Obergefell, which leaves all such decisions up to the courts.

It doesn’t offer “far more” (see response above). What this bill offers is paltry and insufficient and will only incentivize those who already want to launch legal attacks on the religious liberty of people of faith who adhere to their belief that marriage is between one man and one woman.

These matters should not be left up to the courts. But the seven years of litigation after Obergefellhave involved cases that Senator Lee’s amendment would have addressed, and which the current text of the RMA (which Senator Young supported), does not address. So if Senator Young really believes these issues should not be left in the courts, that would have been a reason for him to make the inclusion of Senator Lee’s amendment a condition of his support for this bill, which he refused to do.

One concern I’ve heard from people of faith is that they worry their churches, schools, adoption agencies and faith-based organizations will be subject to lawsuits if they refuse services to same-sex couples. The text of the bill plainly states they will not.

The bill does not say this. It provides extremely narrow and meager protections, as explained below.

According to the legislative text, religious organizations shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.

As I’ve explained elsewhere, 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 an adoption agency 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”).

The text also states that nothing in this act, or any amendment made by this act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or federal law.

First, this is a rule of construction (a directive that the bill must be interpreted a certain way) instead of an outright protection. This leaves the door open for authorities to rule against a religious entity if they want to. The bill’s authors could have specifically protected certain victims (as Senator Lee’s amendment would have done) but chose not to do so.

Second, such a generic 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) or ruling against religious believers in Religious Freedom Restoration Act or First Amendment claims. This bill’s passage will also lead to the finding of a “national public policy” of eradicating discrimination in marriage on the basis of sex, which can be used to revoke tax-exempt status. Religious entities and individuals remain at risk despite this bill’s passage.

I’ve also heard from Hoosiers who are concerned their faith-based organization might lose its tax-exempt status. The bill text is clear: Nothing in this Act shall be construed to deny or alter tax-exempt status, tax treatment, educational funding or a lengthy list of other benefits, such as accreditations for religious schools.

The bill text is the opposite of “clear.”As mentioned above, this is only an instruction that the bill be construed a certain way, and it still leaves the door open to the government cracking down on religious entities. This bill doesn’t outright ban the revocation of tax-exempt status or other benefits from religious schools.

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.”

People of faith also may worry that any change in our civil marriage laws will be used as a weapon by progressives to bludgeon them for their beliefs, but this legislation takes what may be an unprecedented step of affirming the sincerely held beliefs of religious Americans. 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, the amended bill’s introduction says. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.

The only way this bill is “unprecedented” is in the floodgates of hostility it will open toward people of faith.

As I’ve made clear, putting empty 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.

These religious liberty protections are born of the First Amendment, and legal experts from across the faith spectrum have stated that activist judges will not be able to undo them. If I had any doubt about this, I would have voted no.

The First Amendment offers far more than this bill does. Senator Young could have chosen, once again, to tie his support of this bill to the inclusion of Senator Lee’s amendment (which would have protected religious liberty victims). He chose not to.

To the contrary, activist judges have been undoing constitutional protections for decades, and they will be looking for the first opportunity to marginalize people of faith with their activist rulings (which this bill will only encourage).

Senator Young certainly SHOULD have had plenty of doubts and could have made his support for the bill conditional on the inclusion of Senator Lee’s amendment. He chose not to. While I pray I’m wrong, I fear that this bill (which Senator Young helped advance) will be used as a battering ram against people of faith in the months and years to come.

Dignity and respect are not a zero-sum proposition. We can and should strive to ensure all citizens enjoy them in equal measure. The Respect for Marriage Act moves us closer to that ideal.

In terms of how we interact with one another in society, Christians should be the first to agree with this. Unfortunately, this bill is a different matter. The policy and text of the RMA are not concerned with achieving this for all citizens. This bill does not move us “closer to that ideal” — but rather sets up a national policy that will be used to marginalize people of faith and remove them from “polite society.”

Thank you for contacting me regarding this issue. It is an honor to represent you in the United States Senate.