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A friend’s response to David French on the Respect for Marriage Act

The problems with the bill were—and are—dangerous for religious freedom

Sen. Rob Portman, R-Ohio, speaks to reporters as Sen. Tammy Baldwin, D-Wis., Sen. Susan Collins, R-Maine, and Sen. Kyrsten Sinema, D-Ariz., look on after Senate passage of the Respect for Marriage Act. Associated Press/Photo by J. Scott Applewhite

A friend’s response to David French on the Respect for Marriage Act

In a piece titled, “An Open Letter to Those Who Think I’ve Lost My Christian Faith,” Dispatch columnist David French writes that he was “stumped” by my recent summary of the Respect for Marriage Act (H.R. 8404), which ADF opposes and David supports.

In a column published in WORLD Opinions, I wrote that the bill “imposes a new obligation to recognize same-sex relationships on religious organizations that work closely with government.” I was referring to Section 3 of the bill, which declares that “[n]o person acting under color of State law” may refuse to recognize a same-sex marriage. My statement was based on the fact that courts have said in other contexts that private organizations—not just government agencies and officials—can act “under color of State law.”

This is one of the statements David says he is stumped by. He concedes that courts sometimes hold that private organizations are “acting under color of State law” but claims that the circumstances in which this happens are “very narrow” (his emphasis), implying that I overstated the RFMA’s threat to religious non-profits like foster and adoption placement agencies. David also claims that the test for determining when a private entity is a “state actor” is a “very bright line.”

Both contentions are wrong.

In different contexts, courts have developed various “tests” for determining whether a private organization or individual is “acting under color of State law” and thus subject to the restraints the Constitution and other federal laws impose on the government. David dutifully identifies two of the primary tests: whether the government is actually directing the private entity and whether the private entity is performing a traditional, exclusive public function.

But he conspicuously fails to mention a third test—the very test courts have used to find a lot of private entities to be state actors.

The unpredictability of the “under color of State law” inquiry is itself a threat to religious liberty.

Under that test, courts ask whether the private organization and the government are “sufficiently entwined.” In one of its major state action cases, the Supreme Court said that this inquiry is “a matter of judgment” and that “the criteria lack rigid simplicity.” It stated that “no one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient, for there may be some countervailing reason against attributing activity to the government.” The Court declared that “[o]ur cases have identified a host of facts that can bear on” attributing a private organization’s action to the government.

Does that sound like a “very bright line” to you? Me, neither. The Court itself said that there “cannot be a simple line” between the government and private organizations.

The unpredictability of the “under color of State law” inquiry is itself a threat to religious liberty. Progressive activists know the old adage that “the process is the punishment.” The RFMA, which gives private parties the power to bring lawsuits to enforce its provisions, gives those activists a new right and a new weapon to confront religious organizations that maintain their sincere religious convictions about marriage. And they understand that some faith-based organizations will crumble under sufficient pressure, even if they could’ve eventually prevailed in the lawsuits against them.

David is wrong not only about the clarity of the legal test, but also about the frequency of court decisions holding that private entities are state actors. Courts have declared a wide array of private organizations and individuals to be state actors in certain circumstances: state high school athletic associations, bail bondsmen, state bar associations, cooperative extensions, redevelopment corporations, drug testing companies, private universities, foundations, housing contractors, housing providers, insurance companies, hospitals, mental health facilities, non-profit corporations, physicians, private security officers, racing associations, prison chaplains, prison ministries, and towing companies, among others.

Most significantly, multiple courts have concluded that private adoption and foster placement agencies were “acting under color of State law.” Our primary concern at Alliance Defending Freedom has always been that faith-based agencies would face litigation and potential liability under the RFMA. That concern is entirely justified, despite David’s assertion to the contrary.

I also wrote that the bill “gives the Internal Revenue Service a new argument for taking tax-exempt status away from religious non-profits.” David claims that the bill contradicts this contention, quoting a provision stating that “[n]othing in this Act, or amendment made by this Act, shall be construed to deny or alter any benefit, status, or right of an otherwise eligible entity or person, including tax-exempt status, tax treatment, educational funding, or a grant, contract, agreement, claim, or defense.”

Contrary to David’s claim, this provision of the bill does not stop the Internal Revenue Service from invoking the RFMA to withhold tax-exempt status from a religious non-profit that follows its belief that marriage is the union of one man and one woman. How can that be? Well, it’s necessary to understand how the IRS determines whether a non-profit organization deserves tax-exempt status.

In making that determination, the IRS assesses whether the entity is “charitable.” To be “charitable,” the entity may not act in a manner “contrary to public policy.” In determining “public policy,” the IRS looks at Supreme Court decisions, congressional statutes, executive orders, and the like. Our concern is that the IRS will use the RFMA’s embrace of same-sex marriage to help build the case that non-profits that do not recognize same-sex marriage are acting contrary to public policy and thus not entitled to tax-exempt status.

The provision David quotes does not satisfy this concern. That language simply means that no court or agency should interpret or apply the RFMA itself to require revocation of tax-exempt status. No one has argued that the RFMA could be construed that way. The fear has always been that the IRS would use the RFMA as evidence of a national public policy. The section of the bill David cites does not stop the IRS from doing this. To be sure, this is a subtle distinction, but, as David surely knows, the law is full of subtle but sometimes immensely important distinctions.

If the Senate were serious about protecting the tax-exempt status of dissenting non-profits, it would have added Sen. Mike Lee’s amendment.

If the Senate were serious about protecting the tax-exempt status of dissenting non-profits, it would have added Sen. Mike Lee’s amendment, which would have actually prohibited the IRS from revoking a non-profit’s tax-exempt status based on its views and practices regarding marriage, no matter what the basis of that revocation. The fact that a majority was unwilling to add Sen. Lee’s amendment speaks volumes.

David also takes exception with my statement that the bill “makes religious freedom and free speech cases harder to win by elevating the federal government’s interest in same-sex marriage.” He challenges this contention by observing that the bill doesn’t eliminate existing religious liberty protections. (In other words, unlike the atrocious Equality Act, it doesn’t partially repeal the Religious Freedom Restoration Act.) His observation that the bill includes this language is obviously correct, but it does not undermine the truth of my statement.

How does the bill make religious freedom and free speech cases harder to win? Why does its elevation of the government’s interest in same-sex marriage matter? As a former constitutional litigator, David knows that many religious liberty and free speech cases involve the balancing of competing interests. Claimants must show that the government is truly burdening their rights. Governments must show that any restrictions they inflict on speech or religious exercise advance a sufficiently important interest.

How do courts decide whether an asserted government interest is sufficiently compelling? Their analysis is conceptually similar to the IRS’s determination of “public policy.” The sources of “evidence” of a government interest’s “compellingness” is potentially quite broad: federal, state, and local statutes; executive orders; judicial decisions; and the like.

Our concern is that courts will point to the RFMA to conclude that sexual orientation laws advance a sufficiently important interest, one that justifies violations of First Amendment rights. Given that such laws pose numerous threats to free speech and religious exercise, our fear that the RFMA will make these cases harder to win is entirely justified.

David’s overarching complaint about my WORLD Opinions piece is that my statements about the RFMA were “conclusory.” But the essay was focused on the insufficiency of the alleged religious liberty protections Sens. Baldwin and Collins added to the House-passed version of the bill, not on the defects of the original bill.

And it was not as though materials explaining my points above were unavailable. This page on the ADF website fleshes out some of the “conclusory” statements in my WORLD piece, as do (in varying degrees) this July 26 coalition letter to Minority Leader McConnell, this Sept. 13 letter to senators from church leaders, and this Nov. 21 Heritage Foundation resource, among other things. Had David first consulted these materials, I doubt he would have been “stumped” by my initial argument.

Finally, I want to acknowledge that David and I are, and remain, friends—friends who sometimes disagree, but always in a civil way. And as David well knows, I never leave an opposing legal argument unrebutted.

Kristen Waggoner

Kristen Waggoner is CEO, president, and general counsel at Alliance Defending Freedom.


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