No respect for religious freedom in the “Respect for Marriage Act”

Supporters of the intentionally misnamed “Respect for Marriage Act” (which cleared an important procedural hurdle in the Senate earlier this week) are dismissing the undeniable harms the bill will inflict on countless Americans if it becomes law. On top of that, they’re claiming that bill actually advances religious liberty. Hogwash.

The heart of the RFMA’s purported protections of religious liberty is Section 6(b). RFMA supporters claim that it provides houses of worship and other religious non-profits categorical protection from being forced to help celebrate same-sex weddings. And they assert that this is a significant religious liberty advance.

Neither of these claims holds up.

First, Section 6(b)’s “protection” addresses one of the few settings where same-sex marriage (and accompanying sexual orientation laws) hasn’t created religious liberty problems. Laws are simply not being used to force houses of worship to celebrate same-sex weddings. In its 2018 Masterpiece Cakeshop decision, the Supreme Court said that would violate the First Amendment.

Same-sex marriage has been legally recognized since 2015. The number of cases challenging a religious organization’s refusal to host a same-sex wedding? Our research uncovered ... zero.

Second, in addition to this scenario apparently never arising, this is one context in which existing legal protections (such as the First Amendment and analogous state constitutional provisions) are entirely adequate. No reasonable person thinks the government could get away with forcing houses of worship to do same-sex weddings. So, if activists someday try to force churches to host and perform such ceremonies, they won’t need the RFMA to win their cases.

Third, the RFMA doesn’t work like its supporters say. Supporters confidently contend that the protections in Section 6(b) are absolute. But the entire subsection of the bill is qualified with the phrase “consistent with the First Amendment.” Judges may use that language to conclude that this provision is no more protective than the First Amendment—meaning that the bill does nothing.

RFMA supporters also tout Section 6(a) of the bill, which says the statute won’t be read to diminish existing legal protections (like the Religious Freedom Restoration Act and the First Amendment).

This hardly deserves praise. It just means that the RFMA clears the very low bar of being better than the pernicious Equality Act, which strips Americans of their Religious Freedom Restoration Act rights. And saying “the First Amendment is still available” is hardly some sort of generous concession to religious liberty, given that Congress (thankfully) lacks the authority to repeal the First Amendment in the first place. After all, the Biden administration is currently asking the Supreme Court to interpret the First Amendment to let governments compel people to speak views of marriage contrary to their faith.

In the negotiation that generated the Senate substitute version of the bill, Democrats gave up nothing. Republicans gained nothing. Forgive us if we withhold our applause.

The flimsiness of the RFMA’s religious liberty “protections” is made worse by the bill’s utter failure to address the real and serious problems religious Americans face in the wake of Obergefell.

Right now, government officials across the country—including the Biden administration—argue in court that individuals and religious organizations who love and work with people from all walks of life should face civil and criminal penalties if they don’t abandon their beliefs on this issue. Faith-based adoption and foster placement agencies are denied the opportunity to serve needy children. States deny parents equal support if they choose religious schools with the “wrong” views on marriage. Governments force gospel rescue missions to hire people who deny the gospel.

The RFMA addresses none of this. It instead fuels hostility towards Americans who hold beliefs about marriage rooted in honorable or philosophical premises.

It imposes a new obligation to recognize same-sex relationships on religious organizations that work closely with government. It creates new tools for progressive activists and the Department of Justice to enforce that obligation. It gives the Internal Revenue Service a new argument for taking tax-exempt status away from religious non-profits. It makes religious freedom and free speech cases harder to win by elevating the federal government’s interest in same-sex marriage.

And for what? The bill provides no protection or benefits that same-sex couples don’t already have. The Supreme Court assured the country in the Dobbs decision (overruling Roe v. Wade) that it has no intention of overruling the Obergefell decision establishing a right to same-sex marriage. No state is trying to get the Supreme Court to reconsider its ruling.

We can only hope and pray that senators who voted to end debate on the Respect for Marriage Act will reconsider their stance before voting on the bill itself. Better to acknowledge a mistake than to allow this destructive proposal to become law.