Declaration of Independence

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Thursday, November 17, 2022

What Does the Respect for Marriage Act Do?

The topic of discussion for this Freedom Friday concerns the same-sex marriage bill being pushed through the U.S. Senate. The U.S. House of Representatives passed the bill previously, and twelve Republican senators worked with Senate liberals to move the bill forward in the Senate.

Many people are question why the Republicans were willing to work with the Democrats to push the agenda. Roger Severino of The Daily Signal laid the blame on certain people and faith organizations for putting “a giant target on people of faith.” Two of the organizations that he blamed are the National Association of Evangelicals and The Church of Jesus Christ of Latter-day Saints. He wrote that the two organizations “gave defecting senators enough political cover to vote against the interests of the people who put them in office.” The two organizations are not the only places where he put blame.

Additionally, a subset of these advocates, including law professors I respect, raise sophisticated legal arguments purporting to show that the bill actually improves the state of religious liberty in America. This piece demonstrates why this view is grossly wrong. As I and others 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 him.

Severino refused to speculate as to why some of the faith voices who were once opposed to same-sex marriage have flipped on the issue. He believes that they decline to press the sociological, biblical, and biological arguments favoring conjugal marriage. He said that the arguments for entrenching Obergefell v. Hodges in national law “must be judged on their own merits and they demand a thoughtful and serious response.” He discussed seven claims about the proposed Respect for Marriage Act and his response to each of them.

Claim No. 1: Because the bill’s findings characterize beliefs in man-woman marriage as worthy of respect, the legislation would provide religious institutions legally significant protections against being treated by government as the equivalent of bigots.

Response: False. First, the issue is not the ability to believe in man-woman marriage, but the ability to live out those beliefs meaningfully in society and not be labeled a bigot by the government for doing so….

Claim No. 2: The bill can’t be used as a basis for the Internal Revenue Service to deny the tax-exempt status of religious organizations that adhere to and act upon their beliefs in man-woman marriage.

Response: False. Although the bill clarifies through a rule of construction that it does not, by its own operation, revoke tax-exempt status for dissenting religious organizations, it gives ample grounds for the IRS and any other tax authority to do the actual dirty work….

Claim No. 3: Democrats’ marriage bill can’t be used as a basis for government bureaucrats to deny grants, licenses, accreditation, or contracts to religious organizations that adhere to and act upon their beliefs in man-woman marriage.

Response: False. Identical to the question of tax status, although the bill wouldn’t by its own operation revoke licenses, grants, accreditation, or other benefits for religious organizations that hold fast to man-woman marriage, the bill similarly fails to provide any affirmative defense to prevent bureaucrats from using it as a basis for revoking those organizations’ tax-exempt status….

Claim No. 4: Because the proposed Respect for Marriage Act explicitly would preserve application of the Religious Freedom Restoration Act, this concession and existing court precedents are enough to address any potential harm to religious liberty.

Response: False. Although it is some consolation that the sponsors didn’t explicitly strip protection under the Religious Freedom Restoration Act from the bill, it is cold comfort. Neither that 1993 law nor the Supreme Court’s decisions in the Fulton and Masterpiece Cakeshop cases would prevent targeting faith-based organizations, including schools and adoption agencies, along the lines discussed. That’s because the bill before Congress sets the stage for courts finding a compelling national governmental interest in eliminating same-sex marriage “discrimination.”

Claim No. 5: Because the Respect for Marriage Act, if passed, would apply to private parties only when acting “under color of state law,” the risk is minimal that religious organizations would be deemed government actors. But even if they are deemed state actors, they already would be bound by the Supreme Court’s Obergefell ruling in the exact same way as under the legislation.

Response: Partly true, partly false. Yes, the risk that an average religious institution would be deemed a state actor is rather law; however, the question is fact intensive. Religious nonprofit contractors that provide, for example, supervised housing for immigrant families detained on behalf of the Department of Homeland Security, adoption services on behalf of government agencies, or prisoner rehabilitation services mandated by a criminal court might be deemed sufficiently governmental to limit a religious organization’s freedom on marriage questions that could arise in each of those settings.

Claim No. 6: The proposed Respect for Marriage Act, if passed, would provide additional protections for explicitly religious organizations to decline to participate in same-sex marriage celebrations and would bar activist lawsuits on this question.

Response: True, but largely irrelevant. If the First Amendment means anything, it means that government is barred from ordering a house of worship to solemnize or celebrate a same-sex marriage within its chapel, church, synagogue, or mosque. Such lawsuits would readily lose, and any subsequent attempts to relitigate the question eventually would lead to sanctioning of lawyers for filing frivolous lawsuits….

Claim No. 7: The legislation, as amended, would not recognize polygamous marriages.

Response: True and false. The latest version of the bill would not grant federal recognition of “marriages between more than two individuals,” which would cover unions where three or more persons are married to each other’s one family unit.

But the bill leaves open the possibility that one person can be in multiple two-person marriages at the same time, which would trigger federal recognition if a state legally were to recognize such consensual, bigamous unions as separate family units.

Severino concluded that “Tolerance and mutual understanding are not achieved by putting people who believe in man-woman marriage on the same plane as people who reject interracial marriage. That is precisely what the Respect for Marriage Act would do, despite no appreciable risk of same-sex couples’ losing any legal status or benefits.”

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