Senate to vote on marriage act next week

When the U.S. Senate reconvenes the Monday after Thanksgiving, it will debate—and likely pass—a law the American Civil Liberties Union describes as “the most pro-LGBTQ vote in Congressional history.”

The Senate voted to advance the Respect for Marriage Act (RFMA) last week by a vote of 62-37 with support from 12 Republicans, including Sens. Susan Collins of Maine, Mitt Romney of Utah, and Thom Tillis of North Carolina.

The bill, which easily passed the House of Representatives earlier this year, would change the definition of marriage in federal law. Specifically, its language prohibits any person acting on behalf of the government to challenge the legitimacy of a marriage on the basis of “the sex, race, ethnicity, or national origin of those individuals.” The bill also maintains that if a marriage is deemed valid in one state, it must be recognized as such in any other state or territory of the United States.

The legislation effectively aims to rescind the 1996 Defense of Marriage Act (DOMA) signed by President Bill Clinton. That law defined marriage as between one man and one woman. But instead of offering an alternative definition, the new bill leaves the space blank, opening up the legal status of marriage, and the privileges that come with it, to relationships that fall outside of the DOMA definition. Those privileges include things like Social Security benefits, joint federal tax filing, and access to family medical leave.

The Supreme Court’s 2015 decision in Obergefell v. Hodges struck down DOMA. But supporters of same-sex marriage want to codify it in federal law in case the court ever reverses Obergefell.

Critics of the bill say the subtle change in language could profoundly affect Americans who hold religious beliefs that marriage is between one man and one woman. The religious liberty law firm Alliance Defending Freedom says access to government benefits isn’t an existing problem. The bill raises larger concerns about federal overreach in instances where the legal definition of marriage and organizations with a traditional understanding of marriage don’t see eye to eye.

ADF expressed that concern in a letter petitioning Senate Minority Leader Mitch McConnell, R-Ky., to oppose the act earlier this year.

“RFMA forces the federal government to recognize without limit any marriage definitions that a state adopts,” the letter reads. “It also empowers the government to punish millions of Americans who hold decent and honorable beliefs about marriage—beliefs that have existed since time immemorial—exposing citizens to predatory lawsuits and even endangering the nonprofit status of faith-based organizations.”

Jay W. Richards, the director of the Heritage Foundation’s Center for Life, Religion, and Family, echoed the sentiment in an interview with WORLD.

“I think the key thing in the near term is that it will absolutely lead to more lawsuits and more problems with religious believers and people who have a view of [traditional marriage],” Richards said. “Not directly in churches—no one thinks a priest will be forced to conduct a same-sex marriage in the near future. Where this is likely to infringe on people’s beliefs … is going to be in employment and public service and positions like that.”

He explained that the bill applies to anyone “acting under the color of state”—a phrase that applies to the government or extensions of the government. That could mean teachers in public schools, nonprofit organizations, religious colleges or universities, or companies that receive government grants.

“They are all gray areas where there’s some connection to a government institution or to government funding that could very quickly be at risk,” Richards said.

A few senators are looking for a way to defuse that risk by amending the bill

While the Senate’s vote last week for “cloture”— a suspension of debate after a period of 30 hours—closes the possibility of any new amendments, the Senate will still have the opportunity to consider two notable proposed additions. The first, pitched by a bipartisan group of senators, looks to generally prevent the bill from forcing organizations to adopt practices against their religious convictions.

“Penalizing or targeting a private organization because of sincere views on same-sex marriage would be a clear first amendment violation,” Sen. Rob Portman, R-Ohio, said about the amendment. Many of the 12 Republicans who voted for the cloture motion last week said the amendment made them comfortable supporting the bill.

But a number of conservative senators and organizations say that the amendment does not do enough to protect religious believers. Another amendment would go further along the same lines with clearer and more explicit protections. Sen. Mike Lee, R-Utah, and 13 other senators proposed language preventing “any discriminatory action against a person … on the basis that such a person speaks, or acts, in accordance with a sincerely held religious belief, or moral conviction, that marriage is … one man and one woman.”

Where the bipartisan amendment focuses on protecting religious institutions and individuals from civil challenges, the Lee amendment more readily addresses the potential loss of government support for institutions with a traditional view of marriage.

“Instead of subjecting churches, religious nonprofits, and persons of conscience to undue scrutiny or punishment by the federal government because of their views on marriage, we should make explicitly clear that this legislation does not constitute a national policy endorsing a particular view of marriage that threatens the tax-exempt status of faith-based nonprofits,” Lee wrote in a public statement on the amendment.

As it stands now, the Senate will have the allotted 30 hours to contemplate the merits of all tabled amendments, including the two by Lee and Portman.