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.

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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. 

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  1. Brook

    Thanks to you and David, I believe I have a good grasp of this legislation. The discussions I have read in the giant news sources are not nearly as comprehensive, balanced, and well written as yours. Great job as always.

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  2. Wakernan

    The question that needs to be asked and answered is 'what do people have to fear from Lee's amendment?'

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    1. Wakernan

      It needs to be asked so we might know the reason for people's opposition. As to who invited the socons? They weren't invited but dragged to the party by those who would demand their participation in something they find morally repugnant.

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    2. Jim S

      Why does this need to be asked? I found it interesting that in this ‘comprehensive’ article there was zero discussion about the possibility none of these amendments are necessary at all.

      There is a political angle here where the GOP is using these amendments as a sop to Special Interests in their coalition. All the high minded religious talk does not completely obscure that fact ( though they are doing a pretty good job of it) !

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  3. Jim S

    In summary…Republicans will let you have your Big Gay Wedding as long as you let the SoCons in first so they can pee in the punch bowl.

    Which begs the question….who invited them in the first place?

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      JohnM.

      *Raises* the question.

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    Witt Case

    I find Lee's amendment interesting. A lot of people reference BYU while talking about it. But The Church of Jesus Christ of Latter-day Saints has expressed support of the bill as constituted and amended without his amendment.

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  5. Dave1campbell

    thank you for the article. First one, of many I've read on the subject, that brings some real clarity to the arguments. For me, this is another example of what is wrong with our country. Our founders never dreamed we'd have to define something so fundamental as the meaning of marriage. I am most concerned with the unintended consequences of such a bill and the litigation it will invariably unleash on people who do not deserve to be drug through the courts and ruined financially. Not to mention the 1100+ other existing bills that will make reference to this new definition of marriage. What a tangled and costly web we weave!

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    Dusty

    Seems like a perfectly reasonable compromise to me. We can debate the for-profit businesses like Jack Phillips all day, but for me this is the most meaningful part:

    "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."

    I know many will say that if schools don't like the government's rules then they can choose to not take the government's money, but I think that's a highly disingenuous argument even if there are a handful of schools (like Hillsdale) that have always operated on that system. Having always operated on that system is key. Since the government has chosen to get into the loan business (for better or worse) and made the higher education system highly dependent on those loans, grants, etc., many schools would find themselves insolvent if suddenly a majority of their current students could no longer take out loans to attend.

    But, this compromise gives proponents of gay marriage assurance of their marriage's status while also ensuring that, for example, Baptist or Mormon institutions like Baylor and BYU can still adhere to Baptist and Mormon beliefs. It allows a student who has received a federal loan, grant, or scholarship to attend an accredited institution of their choice and that's the best fit for them. Hopefully, this also prevents some of the litigation we've seen against schools like Baylor or BYU from students who choose to attend a Baptist or Mormon institution and then are shocked and offended to discover that they have Baptist and Mormon beliefs.

    All in all, seems like a win-win.

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    1. Mirabelle Schnocklevan

      Why do churches or religious institutions have schools? Is it a way to produce income? If they are setting up a business why does it need a veneer of spirituality? If instead they are contributing to a ministry for their membership, then dependency on the state isn't needed. If a school is created to serve a church need, and there are state funds available for it, then by all means access them, but don't depend on them.

      The line is so blurred these days it's hard to tell what is what. The cake baker wanted a business for income but didn't want to do things he felt violated his personal beliefs. That's different than a church school that slaps on a religious veneer but otherwise is hard to differentiate from a secular school. Why should they get special treatment? Could they really show a sincerely held religious belief? More than that, could they show they fill a need?

      I find little value in the co-mingling of church and state and question if it hinders spirituality. With the recent politicization of the church, I am finding little of value in the institutional church today.

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      1. Cegoodman85

        Probably there are a number of large profitable colleges that have Christian roots but retain only a veneer of spirituality. I am thinking of small private Christian schools (K-12) that may or may not be run by a church. It is laughable to speak of them as income- generating. It is a constant struggle to attract and retain staff because they cannot afford to pay what teachers can make in the public sector and they cannot raise tuition because very few families can afford to pay it.

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        1. Mirabelle Schnocklevan

          Small, dinky schools usually do struggle, and those who work at them often consider themselves in ministry rather than a job, but I would suggest that their motivation is different from some of the large congregations. So good ahead and think of them, and think kindly.

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        Dusty

        I know of no church that operates a school because it creates income. Schools, at least the elementary and high school level, are almost always money losing enterprises. Hence why they’re constantly fundraising - to keep the lights on. I also don’t know of any of these schools that are dependent on the state. The whole argument about “state funding” for these schools are around whether religious schools can be excluded from state programs that fund other private schools/institutions just because they’re religious. That was the case in Trinity Lutheran where MO denied their application to re-tire their playground - a program open to any private institution - just because they were religious, or the case in Maine where the state had a voucher program that could be used for any private school except religious ones. To paraphrase Justice Roberts, the state does not have to have a program that allows parents to use vouchers at private schools, but if it does, it can’t deny their applicability at religious schools just because they’re religious.

        Things are quite different at the university level. There schools really are dependent on government funding in the form of loans. But, these aren’t really the government funding religious schools. It’s the government giving the loan to an individual who then decides where to use the loan.

        Also, the reason higher education has become so preposterously expensive these days is largely due to this government interference. I would be all for the government getting out of the business and having schools not be dependent on them, but I don’t see that happening. So, schools are largely dependent on them as many students would instantly rule out schools where they couldn’t use their loans. In other words, the government has created a system that makes schools dependent on their loans and for it to then turn around decades later and say “but you’re only eligible if you reject your faith’s beliefs and toe the government’s line” comes across as, well, problematic.

        Rather than turn this on the schools I prefer to put in the realm of individual choice. The government shouldn’t discriminate against any schools as long as they meet basic accreditation requirements. If an individual wants a more faith-based education and wants to go to Baylor or Liberty, great. If they want to go to Berkeley or Oberlin, good for them.

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        1. Mirabelle Schnocklevan

          Have you sat in on those church board meetings? Schools do generate income for churches. Obviously the financial situation of an individual church school differs from others, but your personal experience isn't necessarily a majority or a trend. It's like hospitals that originally were funded entirely by church or church organizations as a service and outreach but now rely on government funding. I feel the same drift exists in church schooling. And many churches wouldn't survive without assistance from the state in the form of special tax treatment, laws that can be abused in order to create profits. Could it be that the financial entanglement with the government helped create the politicized church of today? I would say it's very likely.

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            Dusty

            “Have you sat in on those church board meetings? Schools do generate income for churches. Obviously the financial situation of an individual church school differs from others, but your personal experience isn't necessarily a majority or a trend.”

            This is a confusing argument. You start out asking about personal experiences and then say that personal experiences don’t matter. And church schools get the same non-tax status as any other non-profit private schools. When it comes to the school choice argument that’s Roberts’s point - they should be treated the same, not any more or less favorable. They shouldn’t be given special benefits, but they also shouldn’t be denied benefits that are extended to other private schools just because they’re religious. I don’t understand why this is at all objectionable.

            Same with higher ed. The whole argument here is that they should be treated the same and they shouldn’t be discriminated against just because they’re a religious school. Oberlin and Franciscan Steubenville - one super liberal private school and one super conservative religious school, both in Ohio - should be treated the same in the eyes of the state. That could mean denying all government benefits to private schools, and I’m not entirely unsympathetic to that argument. But that shouldn’t mean only denying benefits to the Catholic or Mormon school because we don’t like their beliefs.

            Anyways, you can have the last word. Happy Thanksgiving.

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    2. Jim S

      I think this argument would hold a lot more weight if conservatives would stop trying to direct tax dollars to religious schools and organizations. Because trust me my ‘strongly held convictions’ are every bit as real as theirs.

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        Dusty

        If you want to start a school based on your “strongly held convictions” that can be accredited, and a parent wants to use a state voucher to send their kid there, then by all means I support that. If there’s a transgender academy somewhere that wants to use state funds as part of a program to re-tire its playground then I don’t think it should be discriminated against just for its beliefs. If a Pastafarian chapter wants to open a food bank and apply for a government grant to help in getting it started, then I think they should be considered along with every other application.

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      2. Mark Holmlund

        Do you also support school vouchers so that parents who want to opt out of the public school system can take their tax dollars with them and don’t have to pay twice for their children’s education?

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        1. Jim S

          Sure. The day that people without kids get a major tax cut so they don’t have to pay to send your kids to school.

          Of course that defeats the whole purpose of having a public school system i.e. an educated and informed citizenry, but I think a lot of these voucher folks have already made that leap.

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          1. Mark Holmlund

            There are 2 constituencies who don’t directly benefit from public schools, which are typically funded by property taxes: people who send their kids to private schools and people who don’t have kids. This scheme calls into question the efficiency of the funding mechanism for public education, and it creates a situation where there is no accountability for improving and, if necessary, shutting down, underperforming schools. “Fund students, not systems” is an attempt both to provide choice and equity for the private school constituency and to improve public schools via competition.

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          Scarlette Tarte

          Ah, there it is. There are those that not only want the government to pay for their kids religious education, but then want the same government to give them an "out" so they can harm others.

          Nice.

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  7. BenP

    Lee's amendment says that the federal government can't punish a person or organization if they "speak, or act, in accordance with a sincerely held religious belief" regarding marriage.

    Seems to me that all the meat lies in what kinds of "act" we're talking about. It gives a couple of examples of cases when a "sincerely held religious belief" does NOT give someone permission to "act", such as a medical professional not being allowed to withhold life-saving care. Great! Nice to have "can I let a gay person die because I don't agree with their marriage?" cleared up. There will be tougher calls.

    For instance, with Jack Phillips and his cake business, a lot is being made of the distinction between him selling pre-made cakes to a gay couple and him making a custom cake for them. The idea being that the latter is compelled speech but the former isn't, and so he doesn't get to discriminate against them so long there's no "compelled speech".

    But what if he interprets his sincerely held religious beliefs as prohibiting him from having any part whatsoever in the marriage of two gay men, and on those grounds he refuses to sell them a pre-made cake without any custom writing on it? Is this now federally protected under Lee's amendment? Conservatives are currently worried about compelled speech, and I get that, but Lee's amendment just says "act". Refusing to write "God bless this same sex marriage" on a cake is an act. Telling gay men they aren't welcome in your store is also an act. We cool with both?

    "Act" is a vastly more general term than "speak".

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      Pat @ Tavi Hall

      I'm open to updating my knowledge on this, but my understanding of the legal compulsion to save a life that you've had no hand in jeopardizing is that it is near to nil. If I see someone put a baby in a tub of water to drown as long as I'm just a witness, there's no legal compulsion on me to save the baby (ethics takes a different stand on this). I don't know how this plays out in medical settings, although I do remember the passing of good Samaritan laws to protect folk from civil liability who stopped to help.

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      1. BenP

        Lee's amendment specifically references hospitals, who are subject to malpractice law. I'm not a lawyer and I have no expertise here, but as far as I know there is a distinction between a nurse or doctor refusing to give life-saving treatment and a random person walking down the street refusing to give life-saving treatment. And I think there ought to be. This isn't to say that a nurse or doctor should be legally obligated to give *successful* treatment, only that they perform their duties in good faith. "I won't treat you because your marriage offends my religious belief" is a pretty clear cut instance of not performing one's duties in good faith.

        At any rate, my point was that Lee's amendment recognizes that there exist some "acts" that ought to be punishable by law, even if they are inspired by a sincerely held religious belief that marriage is between a man and a woman. But to my (non-expert) eyes, it doesn't say where the line should be. And it doesn't seem very helpful to say "the line is in a place that doesn't permit this one specific really horrible thing", because the disputes are going to be happening somewhere very different.

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          Scarlette Tarte

          Neither of these amendments carve out interracial marriage either.

          Are they really arguing that there is a "sincerely held" belief that people of two races should not marry? Is that really going to be protected by this amendment? Or that a religious doctor can decide to not treat them if they are in an interracial marriage?

          If so, hell no. These religious folk claiming that can rot in hell as far as I am concerned.

          Everyone should feel the same AND this ridiculousness ought to illustrate how ridiculous the entire clause is, protecting people's right to hurt others.

          Because that is exactly what this is. How about we enshrine a Muslim person's "sincerely held belief" in jihad as sacred. Yes, their "right" to hurt others, who are just living their lives, because it offends them on some level?

          This is exactly the same thing. Saying a religious person or organization has a "right" to hurt people who are doing nothing more than living their own life.

          A gay person entering into a marriage is doing nothing at all to anyone outside of themselves. To say "well, we want religious folk to have the right to hurt them, deny them services, keep them from medical care, or food (a religious food bank for example) or whatever the service is because their religion is sincerely held, all the while taking their tax dollars", is the biggest, nastiest form of protecting discrimination there is, bar none.

          THAT is their argument here.

          No other group of people in this nation are allowed to discriminate, but religious people are? Has everyone gone completely insane?

          Here is how it should be. You wanna have weird beliefs, go right ahead, you are free to do that, BUT you get no public dollars to do so. If you take public dollars you serve the public ENTIRE. Period.

          Otherwise, support your own beliefs with bake sales or what have you.

          And if you are in the medical care or life saving business, you get NO exemption, period. You serve the public. You will give medical care to everyone, period. Or find another field to go into.

          That's how our government should be about religion. You are free to believe what you want, but you have no right to public dollars to support that belief.

          We really need to get rid of these supreme court judges...they are idiots.

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          1. Elderdxc

            It's amazing how you can find all kinds of arguments that are based upon "religious" people harming YOUR pet societal aberration. First of all, Muslims don't enforce Shari'a Law until they control the community; in that sense, Islam is rather pragmatic. Therefore, you don't see any stories about Muslims in Dearborn, Michigan stoning homosexuals.
            You do read stories about queers targetting Christians who own businesses in order to compel them to operate in support of their agenda. So who needs the Constitutional protections, queers or Christians? Based upon the current cultural drift, I don't see queers being under any threat to the preservation of their constitutional right to have relationships that produce no offspring, no families, no heirs, and no future, simply so that they can have the thrill of "going to the chapel of love." In my opinion, Same-sex marriage is to marriage what Frankenstein was to a human being. That we have "evolved" to such a state tells me that the question, "How low can you go" can be answered, "You haven't seen nothin' yet!"

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          Pat @ Tavi Hall

          There maybe a setting difference in the case of medical professionals. But I suspect that they're only required to act in very particular settings and in very specific circumstances and even then it's not law but medical ethics that compel them. You'll need to document this for me, to make me agree on this point.

          Now, I'd be quick to point out there's a difference in compelling action and restricting action. No one gets to execute other humans on the basis of their own beliefs.

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    Mudskipper

    Let me see if I understand this right.

    The Democrats, concerned about what might happen to gay marriage if Obergefell was overturned, worked out a compromise bill with Republicans. In this bill, they took a step backwards from Obergefell in that states can ban gay marriage under this bill. They also made sure that existing religious freedoms would not be adversely affected by this particular bill.

    This, however, is not good enough for the Republicans criticizing the bill. They want to bill to go further in extending religious freedoms, even if the freedoms are not directly affected by the bill.

    Do I have that right?

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      DougCLE

      I think BenP has the right of it, YM, especially in his last paragraph. This is sausage-making; it’s never pretty.

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    2. Jim S

      I think you have that precisely right. It is mind boggling the lengths the Republicans will go to deny the basic humanity of their fellow Americans.

      More than anything the so-called ‘reasonable debate’ over this bill has shown once and for all the Republicans are not actually my friends and never will be.

      These amendments are the perfect example of the ‘Special Rights’ that Republicans spent the last 20 years caterwauling about gay people receiving.

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      1. Rdtomasello51

        Do you really mean all Reoublicans could never be your friends? I am an independent and heartily support this compromise Bill. There are certainly Republicans who want and desire no compromise and will weaponize Christianity to get their way. But I try never to let political disagreement jeopardize those friendships I have with those who do oppose the bill.. Do I fail? Yes several times . It is a sad state of affairs when disagreement can't be differentiated from hostility. But that is the world we live in. But I won't stop trying to persuade even if my efforts prove fruitless.

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        1. Jim S

          I have a fair number of Republican friends. Hell I even have a good friend who is full on MAGA. It is not a litmus test.

          But when these same self folks want to tell me that the GOP is not anti-LGBT just because they personally are not? I push back like hell on that. Because they sure don’t seem to have any issue voting for those folks who vocally espouse precisely the opposite values.

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    3. BenP

      I think they would disagree that "[religious] freedoms are not directly affected by the bill." They point to recent and current lawsuits regarding what they see as state-compelled endorsements of same sex marriage by private actors, and argue that some courts might use the Respect for Marriage Act to side with the states.

      I'm not at all qualified to assess how realistic this scenario is. But I don't think the people who claim to worry about it are being insincere, given how intensely they feel about Masterpiece Cake Shop and the like.

      But yeah, I'm sure there are plenty who'd mostly just love to grab a win on this tangential religious-freedom issue while they have the chance, and now's the chance. From that more cynical point of view it's less "we conservatives still think this is a bad bill" and more "this is an opportunity to help us win some court cases, let's see how much we can get from the leverage we have".

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    Mattjabour

    None of this should still be up for debate. The fact anyone outside of the Westboro Baptist Church voted against this bill is highly troubling.

    A lot of progressives think that a lot of conservatives want to pull our social progress backwards, and would happily backslide us all into the middle ages if left unchecked. This is a prime example of why.

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    1. MathewA

      And a lot of progressives want to use the police power of the state to go after any individuals, businesses or organizations that don't want to support gay marriage.

      See Masterpiece Cake shop, Arlene's flowers, 303 Creative etc.

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      1. Jim S

        Welcome to Conservative America….where cakes have more rights than people.

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        1. Elderdxc

          Umm - try again. Welcome to "Progressive America..." There - that will fix it. There never was a problem until Progressives engineered one to support their deconstruction of society. It's amazing; for millennia, NO civilization on the PLANET saw a need to include two men/women indulging their lusts for one another in the definition of marriage. Why? Because until now, EVERY society on the planet understood that marriage was for the protection of families that would procreate, thus building toward the future of society. I would bet that you could name on one hand the civilizations that saw two men or two women as being the marital equivalent of a man and a woman. I'll wait while you Google.

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