What Does Religious Liberty Have to Do with Marriage?

            The liberty principle for this Freedom Friday concerns marriage and religious freedom. The First Amendment to the United States Constitution guarantees religious freedom: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

The principle is stated plainly for all to read, yet many people do not want to believe it says what it says. Other people claim that the First Amendment applies only to the federal government. Such people do not understand that the Fourteenth Amendment made the First Amendment protection of religion applicable to the states in 1940. Freedom of religion is well established. Americans are free to practice their religion in public places and to share their beliefs outside their homes.

The same cannot be said about marriage because marriage is not even mentioned in the Constitution or any of the Amendments to it. This brings us to an article posted by Roger Severino stating that senators should not play games with religious freedom and marriage. He claims that they are using “fig [leaves], smoke and mirrors, lip service, and bait and switch.”

It’s hard to pick exactly the right way to describe the attempts 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….

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.

            Severino warned Americans to not be fooled. He explained that cunning attorneys use excess words to misdirect attention. “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. He then proceeded to “address each obfuscation in the order” presented.

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 … namely, that marriage only can be the union of one man and one woman….

Second, the three senators’ amendment would add a rule of construction saying that no existing protection of religious freedom would be taken away….

Third, the amendment would allow faith-based institutions and nonprofits to decline to participate in a “solemnization or celebration” of a same-sex marriage….

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.

            Severino accuses the drafters of the amendments of conjuring up “the illusion of religious freedom while undercutting it at every turn.” He continued, “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 the drafters claim that they need more time to work on the amendments. Maybe they are working to “sneak something in during a lame-duck session after the Nov. 8 elections.” Severino said, “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.”

            However, according to Severino, Lee’s bill would be less bad than the Baldwin, Collins, and Romney bill, but it would not be a good bill. “One hopes Congress will drop the whole thing and just get back to legislating for the public good….”