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Explaining the Right’s Debate Over the Senate’s Gay Marriage Bill
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Explaining the Right’s Debate Over the Senate’s Gay Marriage Bill

Religious freedom advocates don’t all agree on the Respect for Marriage Act.

Sen. Mike Lee (Photo by Tom Williams-Pool/Getty Images)

Does the Senate’s gay marriage bill safeguard religious liberty or erode it? Different people give different answers, even if they’re both Republicans and both firmly support religious freedom.

A dozen Republican senators voted with Democrats last week to move forward with the bill—aimed at protecting same-sex and interracial marriages—after winning language explicitly addressing religious liberty and religious institutions. An earlier version of the bill passed the House over the summer, with 47 Republicans joining Democrats in supporting it. Now that the Senate bill has new provisions, the House will have to consider it again. The Senate is set to continue debate on the measure when the chamber returns from Thanksgiving recess, and it is poised to pass. 

Supporters of the bill say its religious freedom provisions are robust. But another set of Republican senators and conservative organizations have slammed it, calling for a farther-reaching amendment blocking the government from discriminating against people based on their beliefs about marriage. 

Limited Approach

Much of the disagreement centers on how far the bill should go. On all fronts, the bill is limited, which is why some progressives have criticized it too.

The legislation doesn’t create a national right to gay marriage. Rather, it requires state governments to recognize marriages legally performed in other states. The bill came about because of speculation that the Supreme Court—after dismantling Roe v. Wade this year—could unwind the 2015 Obergefell v. Hodges decision that made gay marriage legal nationwide. In such a scenario, the Respect for Marriage Act would require states to recognize same-sex marriages legally performed in other states or at a time when it was legal, even if they were to ban performing same-sex marriages within their own jurisdictions. Despite the limited scope, proponents argue the bill is essential to protect existing gay marriages and give those couples peace of mind.

“It’s better for Congress to clarify these issues than for federal judges to make these decisions,” Missouri Republican Sen. Roy Blunt said of his support for the bill last week.

The bill’s religious liberty provisions are also limited: They don’t affirmatively and comprehensively ban the government from ever revoking an organization’s tax-exempt status based on beliefs about marriage, for example, but they do ban the government from using this bill to do that. That section of the bill also prohibits the government from using the legislation to deny or alter educational funding, grants, contracts, loans, scholarships, licenses, certification, accreditation, and other benefits based on an organization or person’s beliefs about marriage.

“The bill is really very narrow,” said Sen. Rob Portman, an Ohio Republican who is backing the measure. “It’s constitutional and it does not infringe on state sovereignty.”

Sen. Mike Lee, a Utah Republican, has introduced a more sweeping amendment to ban discriminatory behavior by the government based on marriage views. Senate leadership hasn’t granted a vote on his measure yet, though he is still pressing for one.

Where the Respect for Marriage Act says nothing within it can be used to take away or alter government and tax benefits from a person or entity, Lee’s amendment would forbid the federal government from taking away or changing those benefits due to beliefs about marriage. 

“His amendment covers all federal action and all federal law; the bill just covers this federal law,” Douglas Laycock, a law professor at the University of Virginia and a prominent scholar of religious freedom law, told The Dispatch

Lee’s changes “are not necessarily bad ideas,” Laycock added, but because they weren’t hammered out with Democrats he thinks they’ll be difficult to pass. Laycock supports the negotiated bipartisan version of the bill, arguing with other scholars in a letter last week that the religious liberty safeguards in the legislation are “meaningful and important even if not comprehensive.”

Reasonable and Sincere People

One of the most important new sections of the bill, according to Laycock and other religious liberty experts, is a statement that diverse beliefs about the role of gender in marriage are held by “reasonable and sincere people based on decent and honorable philosophical premises.”

It further affirms that “such people and their diverse beliefs are due proper respect.”

Laycock and the religious freedom scholars wrote in their letter that this statement from Congress “would be a legitimate, and powerful, statement of national policy—one favoring respect for (among other things) religious organizations that adhere to traditional views of marriage.”

It also distinguishes belief in male-female marriage from opposition to interracial marriage. This, supporters say, is an important line to draw. Some groups have argued past judicial decisions to revoke tax-exempt status for religious institutions based on racial discrimination should apply to organizations holding a traditional view of same-sex marriage. The religious scholars said this bill would weaken those attempts. 

Still, other religious liberty proponents argue the language is too vague to be meaningful. Roger Severino of the conservative Heritage Foundation wrote that the bill does not include any terms specific to male-female marriage, but it does actively affirm that interracial and same-sex couples “deserve to have the dignity, stability, and ongoing protection that marriage affords to families and children.” That language, he argued, may be potent in courts in the opposite direction.

Other experts take issue with the phrasing but suggest the language still marks a step forward for religious institutions. Matthew Lee Anderson, an assistant research professor of ethics and theology at Baylor University, wrote Monday that the language is “vague, to be sure.” But, he added, it “also lends statutory support to the notion that disagreement about what constitutes marriage is reasonable and so not reducible to animus.”

For that reason, among others, Anderson said he is “not persuaded that it is the disaster conservatives have claimed it is.”

The Solemnization or Celebration of Marriage

The bill also specifies that churches, mosques, synagogues, temples, religious schools, and a whole host of other nonprofit religious organizations and agencies “shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.”

Conservative groups have criticized this: That the government is not able to compel churches to perform marriages should be obvious under the Constitution. They would like this section to go further, not just addressing the solemnization or celebration of marriage but also recognition of it.

Opponents broadly fear that the bill could spark “more litigation against those institutions and individuals trying to live according to their sincerely held religious beliefs and moral convictions,” as Lee wrote in a letter to his colleagues.

Concerns about litigation are real: Religious schools, nonprofits, business owners, and others have faced costly litigation related to their beliefs about marriage and sexuality for years. Many of those are based on state-level anti-discrimination laws, though, outside the scope of the Senate bill as written.

The group of religious freedom scholars who wrote the letter last week in support of the bill pointed out that this section bars “any civil claim or cause of action” based on a religious organization’s refusal to participate in the solemnization or celebration of a marriage.

“Although courts might provide such protection under the First Amendment, this provision makes the right more secure and avoids lengthy constitutional litigation,” they wrote.

My colleague David French summarized that the bill’s “provisions, taken together, roughly preserve the legal status quo.”

It does not purport to address every religious-liberty issue related to same-sex marriage. For example, it doesn’t address the conflict between the First Amendment rights of for-profit businesses and state nondiscrimination laws—a conflict that SCOTUS will partially address this very term when it decides 303 Creative v. Elenis, a case involving a clash between a Christian web designer’s free-speech rights and Colorado’s public-accommodations statute. The question is simple: Whether “applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

While some conservative critiques of the legislation focus on the substance of the text, like those who worry the language is too vague, others say it fails to address all current and potential future threats to religious liberty.

Still others, like the Southern Baptist Convention’s Ethics and Religious Liberty Commission, share those concerns but ultimately oppose the bill primarily because of their beliefs about traditional marriage.

And some seem open to the idea that it is a net-gain for religious freedom.

“The bill does not give comprehensive protections because it isn’t trying to solve every religious liberty question in one go,” Anderson, the Baylor professor, wrote. “It also allows other legislative solutions to those questions.”

“These are not the only religious liberty protections we need, at all,” he added. “Yet the gains here are not negligible, either, and what is lost is—well, the answer to that depends on how realistic it is to think that Obergefell will be overturned within the next 10 years.”

Haley Wilt is a former associate editor for The Dispatch.