November 29, 2022
WASHINGTON DC—Today the U.S. Senate passed S 4556 / HR 8404, which is captioned “The Respect for Marriage Act” (RFMA). This bill repeals the “Defense of Marriage Act” (DOMA), signed by President Clinton in 1996, banning the federal recognition of same-sex marriage by defining valid marriage as “the union of one man and one woman.”
[Editorial insertion: President Joe Biden praised the vote and said he will sign the bill "promptly and proudly" if it is passed by the House of Representatives, which the Republicans won back in the midterm elections earlier this month.]
https://www.congress.gov/congressional-record/volume-168/issue-178/senate-section/article/S6770-3
History: The Defense of Marriage Act and the Supreme Court
Practically speaking, Section 2 of DOMA gave states the statutory authority to refuse to recognize same-sex marriages that had been granted in other states. DOMA passed through Congress with veto-proof majorities in the Senate of 85-14 and the House of Representatives of 342-67.
Under Section 3 of DOMA, the federal government was precluded from recognizing same-sex marriages for all purposes, including insurance benefits for federal employees, social security survivors’ benefits, immigration, bankruptcy, and the filing of joint tax returns.
In 2013, the U.S. Supreme Court ruled that Section 3 of DOMA was unconstitutional in United States v. Windsor and that the federal government must recognize same-sex marriages conducted in states that allowed same-sex marriage. In 2015, the Court ruled that Section 2 of DOMA was unconstitutional in Obergefell v. Hodges, that same-sex marriage was a constitutional right in all states, and that all states must perform and recognize same-sex marriages.
What the “Respect for Marriage Act” Does
Chuck Schumer celebrates the passage of RFMA
RFMA, passed by a vote of 61 to 36 in the Senate today, and passed in the House on July 19, 2022, by a vote of 267-157, will require the federal government to recognize same-sex marriages performed in the United States. This will make the Windsor (2013) decision part of the written law. It will also require all states to recognize same-sex marriages, reflecting the Obergefell (2015) decision.
The law will also make it possible for the attorney general and “any person who is harmed” by a violation of RFMA to bring a civil suit against “any person” who refuses to honor same-sex marriages for declaratory and injunctive relief.
Sponsors of the bill also claim that later versions will protect the free exercise of religion of religious organizations that do not want to be required to recognize same-sex marriages.
The current impetus for RFMA, which has been under consideration for over a decade, was Justice Clarence Thomas’ statement in his concurring opinion in Jackson v. Dobbs (2022), which overturned Roe v. Wade, that the Court should revisit other “substantive due process” cases including Obergefell.
Will RFMA Really Protect Religious Liberty?
As originally introduced in the House on July 18, 2022 (HR 8404 – Nadler), the RFMA did not refer to the protection of religious institutions.
Some supporters of the bill have touted the fact that the RFMA will not require the federal government or other states to recognize polygamous marriages which has not been much of an issue in recent years, and if it were, there may be equal protection arguments. The bill also duplicates protections that religious institutions and clerics already have under the First Amendment protections that would likely be upheld by the Supreme Court against being required to perform or recognize same-sex marriages.
The latest version of the bill (as of November 17, 2022) includes Section 6 with a heading titled, “No Impact on Religious Liberty and Conscience.”
This title is erroneous because it only addresses the right not to participate in same-sex marriages. RFMA does not protect religious organizations that refuse to recognize any form of marriage other than between one man and one woman aside. The only protection will be from the current judicial interpretation of the Constitution.
It states, “Nothing in this Act, or any amendment made by this Act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.”
It also includes language that “Consistent with the First Amendment to the Constitution, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious, educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.” (Emphasis added.)
The statute continues, “Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods or privileges shall not create any civil claim or cause of action.” (Emphasis added.)
Understood in its most precise form, the protections under this statute appear to solely exempt religious institutions and entities “whose principal purpose” from having to perform or participate in the marriage ceremony itself. The statute’s language does not appear to protect organizations that refuse to recognize existing same-sex marriages fully.
Section 7 of the act states that this act would not impact “status and benefits not arising from a marriage.” This would include “tax-exempt status, tax treatment, educational funding, or a grant, contract, agreement, guarantee, loan, scholarship, license, certification, accreditation, claim or defense.” This is supposedly designed to protect money going to religious schools because these things do not “arise from a marriage.” In other words, if a person gets a benefit that does not exist because they are married, it would not be impacted by RFMA. But then the bill is about marriage, not Title VII of the Civil Rights Act. The “arise from a marriage” language is vague and requires extensive interpretation and invites litigation. If the authors of Section 7 intended to allow religious groups that receive federal benefits to continue ignoring same-sex marriages, the language would be much more precise.
Senator Mike Lee (R-UT) wanted to include language that would “prohibit the federal government from retaliating against any person or group for adhering to sincerely held religious beliefs or moral convictions about marriage” but this was left on the cutting-room floor.
Educational institutions that are affiliated with religious groups but also accept federally contracted funding for research or tuition (which itself is not going to be for the “principal purpose” of religion) may find themselves at risk of enforcement actions if they insist on discriminating against same-sex married couples.
But What About Individuals?
On December 5, the Supreme Court will hear the oral argument in 303 Creative v. Elenis, involving a graphic artist who believes that a Colorado state anti-discrimination requirement that she make websites for same-sex marriages violates her free speech rights. Given the Court’s current makeup, it will be surprising if the Court finds that the state can force her to provide services in violation of her sincerely held religious beliefs.
Suppose the Supreme Court were to find against the graphic designer. In that case, RFMA will do nothing more to protect her right of conscience because her job is not involved mainly in the “advancement of religion.”
There is no right of conscience within the bill for individuals in other capacities to refuse to recognize same-sex marriages to the same degree they recognize heterosexual marriages.
A Time of Decision
The world is changing rapidly, and the nation is becoming more polarized. There’s fear and concern about discussing morality in the public sphere or even within churches and families. This bill will, with finality, enshrine same-sex marriage as equal in law and culture to heterosexual marriage, and the implications for those who question it will be severe.
This article appeared in the ReligiousLiberty.TV newsletter and is reprinted with permission.
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