On November 16, with 12 Republican Senators joining their Democratic colleagues to forestall any filibuster, the Senate voted to advance a Respect for Marriage Act (RMA) bill that incorporates multiple religious freedom protections. The House, on July 19, had passed a version of the bill lacking any such protections. In addition to further votes in the Senate, the amended text must be approved by the House before being sent to the President’s desk. Do those religious freedom protections have any real value? And why is Congress even debating same-sex marriage, given the Supreme Court’s Obergefell decision (2015) mandating marriage equality in every state?
Last June, in his opinion supporting the Court’s Dobbs decision overturning the Roe v. Wade abortion precedent, Justice Clarence Thomas suggested that the Court in the future might also revisit other significant constitutional rulings, including Obergefell. Although the majority opinion insisted that there was no threat to those other decisions, some other justices disagreed, as did key LGBTQ rights advocates. Congress thus felt pressure for action to bolster a broadly approved marriage right that suddenly seemed less secure. The Respect for Marriage Act, if it becomes law, would ensure that the federal government and every state will continue to honor same-sex marriages even if Obergefell is overturned.
The amended version of the RMA, however, would pair its same-sex marriage requirements with a package of religious freedom protections. The two Senators spearheading the Senate variation, Democratic Senator and promoter of LGBTQ rights Tammy Baldwin (Wisconsin) and Republican Senator Susan Collins (Maine), also a promoter of LGBTQ rights, underscored the bill’s religious freedom provisions when they unveiled it. And rightly so. Although a number of religious freedom advocates have severely criticized the bill, a letter to the Senate from noted constitutional law scholars confirms the strength of the religious freedom protections.
Affirming religious freedom protections and tax-exempt status. First, unlike one-sided LGBTQ-rights bills such as the proposed Equality Act, the Senate Respect for Marriage Act affirms, rather than undermines, the sweeping protections of the Religious Freedom Restoration Act and other federal religious freedom and conscience protections (Sec. 6(a) specifically affirms these rights). Moreover, because President Obama’s Solicitor General conceded to the Obergefell court that making same-sex marriage constitutional might jeopardize the tax-exempt status of religious colleges and other ministries that hold to traditional marriage, the Senate’s RMA pointedly declares that “nothing in [the act] . . . shall be construed to deny or alter . . . tax-exempt status” (Sec. 7(a)).
No duty to conduct or celebrate same-sex marriage; no loss of government benefits. The Senate Respect for Marriage Act also specifically provides that no house of worship or other religious nonprofit can be required to promote, facilitate, or celebrate a kind of marriage it disagrees with, and it cannot be sued for declining to aid a same-sex wedding (Sec. 6(b)). Nor will any private organization or person lose its government-granted license, accreditation, scholarship, grant, or contract because of its convictions and actions concerning same-sex marriage (Sec. 7(a)).
Government has duties, not private parties. The Senate Respect for Marriage Act is about what the government, not private entities, must do. It overturns the federal Defense of Marriage Act (DOMA), which has already been overruled by the Supreme Court, and requires the federal government to recognize a marriage between two people if that marriage is valid in the state where it was entered into. The RMA would require every state to extend “full faith and credit” to marriages contracted in other states, although (unlike Obergefell) it would not obligate every state to license same-sex marriages. Under the Respect for Marriage Act, people could sue to make officials accept their same-sex marriage—as they can do currently. The Respect for Marriage Act would require each state to protect the benefits belonging to people who became legally married in another state; states that did not permit same-sex marriages themselveswould have to extend spousal tax benefits to same-sex spouses moving in from another state, for example.
Protecting faith-based organizations. A very limited number of private entities might be directly affected by the Respect for Marriage Act. In very rare circumstances, private organizations, even religious organizations, may be so intimately intertwined with government responsibilities and authority as to be legally recognized as “state actors”—and thus, just like government officials, be required by the Respect for Marriage Act to recognize same-sex marriages as equivalent to traditional marriages. Yet under Obergefell, that is already the legal reality. The Respect for Marriage Act makes no religious charity, college, adoption agency, mosque, employee in a secular business, or wedding-cake artist, any more legally at risk than they are at present because of a commitment to traditional marriage.
Supporting traditional marriage is not the equivalent of racism. In truth, the Senate’s Respect for Marriage Act strengthens religious freedom protections for every entity and person who remains committed to traditional marriage. And that is because it pairs religious protection with its protection of same-sex marriage.
About half the states and many big cities have nondiscrimination laws requiring private organizations and people to treat both types of marriage equally. Often these laws have religious exemptions, and even if exemptions are missing, dissenting people and organizations have significant religious freedom protection from the federal and state Religious Freedom Restoration Acts and federal and state constitutional protections. These exemptions exist because religious exercise is also a civil right and thus differing views of marriage require protection. Unfortunately, too many proponents of same-sex marriage and other LGBTQ rights continually press government officials to suppress those religious protections on the grounds that non-affirmation of LGBTQ rights is the equivalent of racism. This is not the case. Our nation’s civil rights laws rightly provide no protections for racists. But the government understands that differing views on marriage must be respected in a pluralistic society.
The Senate’s Respect for Marriage Act does not create a new same-sex marriage non-discrimination obligation for private organizations and people. But it does put into law a new requirement to balance same-sex marriage protections with religious freedom protections. Far from suggesting that federal and state governments have a compelling interest in suppressing views and actions that uphold traditional marriage, one of the “findings” (congressional declarations) in the Senate bill states that “[d]iverse 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.” This is language taken from the Obergefell majority opinion, but here it is put into federal law and is no longer simply a “by the way” statement by justices of the United States.
Even more important is the very array of religious freedom provisions in the Senate’s Respect for Marriage Act—in the very federal law protecting same-sex marriage. The Senate’s Respect for Marriage Act requires government recognition of such marriages—and at the very same time, specifies multiple protections for religious freedom, for the beliefs and actions, rights and privileges, of organizations and people who do not accept same-sex marriages as the equivalent of traditional marriage. Thus, the Respect for Marriage Act will be a powerful statement by Congress that government must protect the freedoms of dissenting people and organizations even as it recognizes legal same-sex marriages.
In the view of the Institutional Religious Freedom Alliance (IRFA), written in a statement sent to the Senate and cited in the Senate’s discussions of the RMA bill,
We regard adoption of the Act as the best opportunity since the passage of the Religious Freedom Restoration Act (1993) and the Religious Land Use and Institutionalized Persons Act (2000) for Congress to safeguard religious freedom with Democratic support. The amended Respect for Marriage Act codifies what is already the law of the land because of Obergefell while adding to the U.S. Code new protections for religious freedom in the context of marriage equality.
Governmental respect for traditional marriage—the conception of marriage to which IRFA is committed—is too important to be left to general statements by the U.S. Supreme Court justices and general religious protections. Protections ought to be written directly and specifically in the U.S. Code of laws, in the same places that LGBTQ civil rights were secured and recorded.
To be sure, religious freedom protections for supporters of the biblical view of human sexuality ought to go further than the Senate RMA bill goes. Notably, Senator Mike Lee (R-UT), right after the Obergefell decision, proposed broad-ranging protections in a First Amendment Defense Act (FADA) bill. However, FADA has never received any Democratic support and did not make it into law even when Republicans held both houses of Congress and former President Donald Trump was in the White House. IRFA helped to spark creation of an alternative approach than FADA. The Fairness for All Act, ready for congressional action as the next step beyond the Senate’s Respect for Marriage Act, will put into law sweeping protections for religious exercise, religious organizations, and free speech in a package together with broad civil rights protections for LGBTQ people. The religious freedom protections that will actually protect religious freedom in our era of high support for LGBTQ rights are those that make it into the rulebooks. The Senate’s Respect for Marriage Act is a good start.
Stanley Carlson-Thies is the founder and senior director of the Institutional Religious Freedom Alliance (IRFA), a division of the Center for Public Justice. Carlson-Thies is also a senior fellow at the Canadian think tank Cardus. From 2009-2010 he served on a task force of President Obama’s Advisory Council on Faith-Based and Neighborhood Partnerships and he also served with the White House Office of Faith-Based and Community Initiatives from its inception in February 2001 until mid-May 2002 under President George W. Bush.