On Tuesday, it was reported that Senate Majority Leader Chuck Schumer, D-N.Y., might force a vote on the redefinition of marriage by attaching the so-called Respect for Marriage Act to a funding bill that must be passed if the government is to avoid a shutdown. If the Respect for Marriage Act, which passed the House in July, becomes law, it would cement same-sex marriage as federal policy, threaten religious liberty, and almost inevitably expand the definition of marriage beyond what was handed down in the Supreme Court’s Obergefell decision.
It remains to be seen whether Sen. Schumer will actually attach the marriage redefinition bill to a larger funding bill. Supporters of the Respect for Marriage Act have said they would prefer a standalone vote on the bill. But the dangers to religious liberty posed by the bill remain, no matter the method by which it is taken up for consideration by the Senate.
The bill’s co-sponsors, Sens. Tammy Baldwin, D-Wis., and Susan Collins, R-Maine, recently penned an op-ed that sought to alleviate people’s concerns by claiming, “Our bipartisan legislation leaves intact religious liberties and protections afforded to individuals and organizations under federal law.” The senators added that they are working together “to develop clarifying language to the legislation” that ensures “religious liberty or conscience protections” will be preserved.
Any discussion about protecting religious freedom as it relates to the Respect for Marriage Act is only happening because of the outcry raised by conservatives when the bill passed the House. But any amendment would be inadequate because the bill itself represents an unprecedented assault on religious liberty.
Consider these danger signs:
First, the Respect for Marriage Act would increase the threat of legal risk for those who decline to affirm same-sex marriage. Even before the Supreme Court legalized same-sex marriage, people who believed marriage is the relationship between one man and one woman were targets for politically motivated litigation. The stories of Barronelle Stutzman (a florist in Washington), Kelvin Cochran (a fire chief in Georgia), Jack Phillips (a baker in Colorado), and others were likely on Justice Samuel Alito’s mind when he noted in his Obergefell dissent that the Court’s decision would be used “to vilify Americans who are unwilling to assent to the new orthodoxy” and that those who disagree “will risk being labeled bigots and treated as such by governments, employers, and schools.”
Activists have weaponized nondiscrimination and public accommodation laws and policies to intimidate and coerce those who believe in a biblical definition of marriage.
Unfortunately, Justice Alito’s predictions have proved prophetic, as dozens of wedding vendors, business owners, religious universities, adoption agencies, and churches have faced lawsuits because of their sincerely held beliefs. Activists have weaponized nondiscrimination and public accommodation laws and policies to intimidate and coerce those who believe in a biblical definition of marriage. If the Respect for Marriage Act becomes law, government coercion and prosecution of those who disagree on the nature of marriage will get a major boost.
Second, the Respect for Marriage Act would threaten the tax-exempt status of religious organizations. If the bill becomes law, the executive branch could argue that same-sex marriage is a “fundamental national public policy” and use that reasoning to justify denying tax-exempt status to ministries whose views on marriage and sexuality are based on biblical teaching.
Already, federal courts have indicated a willingness to remove the tax-exempt status of faith-based groups. A Maryland district court recently held that the tax exemption of a religiously affiliated school constituted federal financial assistance, which subjected the school to Title IX mandates. Because the definition of “sex discrimination” has been broadened to include sexual orientation and gender identity, it is not hard to imagine the Respect for Marriage Act being used to justify removing the tax-exempt status of faith-based groups. In 2015, President Barack Obama’s solicitor general signaled the threat to tax-exempt status, saying that it was “certainly going to be an issue” if religious schools with a moral code of conduct conflicted with same-sex marriage.
Third, the Respect for Marriage Act would run roughshod over the basic principles of federalism by forcing definitions of marriage upon the American people that they did not choose for themselves. Every state would have to recognize every other state’s definition of marriage, and the federal government would have to recognize whatever definition of marriage any state adopts, even polyamory or polygamy.
It remains to be seen what tactics Sen. Schumer will employ as relates to the Respect for Marriage Act. Whether attached to the budget bill or not, the consequences for religious liberty are serious, despite promises from Sens. Baldwin and Collins that the bill will “leave intact” protections for religious liberty. As we’ve seen, these protections have been shattered since Obergefell. This bill, which would enshrine the shattering of these liberties into federal law, must not pass.
