WASHINGTON — A newly enacted law to codify same-sex civil marriage may have just given the government and activist groups new ammunition against those who adhere to the long-standing view that marriage is between one man and one woman.
The U.S. bishops and religious-freedom groups are warning that the recent passage of the “Respect for Marriage Act,” purportedly aimed merely to uphold the protections afforded to same-sex couples in the Supreme Court’s 2015 Obergefell v. Hodges decision, in fact opens up new legal avenues for targeting people of faith and others who dissent on the issue.
The measure passed the House 257-168 Thursday, Dec. 8. It is expected to be signed into law shortly by President Joe Biden. Requiring all states to recognize same-sex civil marriages performed out of state, it formally repeals the 1996 Defense of Marriage Act (DOMA) that defined marriage as between one man and one woman.
The Supreme Court’s 2015 Obergefell decision currently requires all states to allow same-sex civil marriage, but the legislation was proposed following concerns that Obergefell might be overturned.
Justice Clarence Thomas wrote in his concurring opinion in Dobbs v. Jackson Women’s Health in June that the Supreme Court “should reconsider” substantive due-process precedents, including Obergefell. However, many observers argued that these concerns were unfounded, as Justice Samuel Alito stated in the Dobbs majority opinion that the decision “concerns the right to abortion and no other right.”
And critics of the bill warn it goes beyond simply codifying Obergefell and provides a new basis for the government and outside organizations to target those who believe that marriage is between one man and one woman.
Matt Sharp, senior counsel and state government relations director at the Alliance Defending Freedom, told the Register that the bill provides the government with “broad new powers” to “punish” organizations due to their beliefs about marriage.
Sharp outlined two major concerns that Alliance Defending Freedom, a Christian legal group that focuses on religious liberty, has with the measure. The first is that faith-based organizations receiving any sort of government funding or participating in government programs could be interpreted to be acting “under color of state law” and thus be required by the measure to recognize same-sex unions.
The second is that the bill’s creation of a private right of action would give activist groups the ability to sue religious organizations over their beliefs about marriage.
Sharp said that while some of these lawsuits could work out in favor of the religious groups, “often the process itself of dragging an organization into court is the punishment,” due to the costs, lengthy hearings and drawn-out court battles.
Sharp added that the measure is “unnecessary,” in terms of protecting same-sex civil marriage, because the bill “provides no protection, no benefit to same-sex couples that they don’t already have under the law.” He said the Supreme Court has been “very clear that it had no intention of overruling Obergefell,” and no state has been asking that the Supreme Court reconsider that case.
Roger Severino, vice president of domestic policy at the Heritage Foundation, told the Register that the private right of action in the measure means that any individual who thinks they’ve been discriminated against on the question of same-sex civil marriage can file suit in federal court. With respect to partnerships with the government that could be vulnerable to lawsuit under the bill, he said this could include adoption services, prison rehabilitation programs, and housing programs.
Severino, who served as the head of the Department of Health and Human Services’ Office of Civil Rights from 2017 to 2021, also raised concerns about the bill targeting groups’ tax-exempt status and highlighted the measure’s language prohibiting discrimination on the basis of sex alongside prohibiting discrimination on the basis of race. He said its equating of opposition to same-sex civil marriage to opposition to interracial marriage “empowers the IRS to take away the tax-exempt status for religious institutions who stand for one man, one woman marriage” in the future.
He believed the bill’s authors “wanted to add interracial marriage precisely to make the parallel” so that “the IRS can point to that and say this is now national policy; people who oppose same-sex marriage are equivalent to racist bigots.”
Insufficient Religious-Freedom Protections?
According to Severino, despite the inclusion of some religious-freedom provisions, the bill still “puts a giant target on the backs of people of faith.”
The bill was amended in the Senate, where it passed 61-36, to include language that nonprofit religious organizations “shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage” and that nothing in the 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.”
A handful of religious groups, including the National Association of Evangelicals, the Seventh-day Adventists and the Church of Jesus Christ of Latter-day Saints, said they were satisfied with the religious-freedom language added to the bill in the Senate.
Douglas Laycock, a professor of law and religious studies at the University of Virginia, wrote in Commonweal that he believes the bill “provides that religious resistance to federal recognition of same-sex marriage shall not result in any lawsuit or any loss of government benefits or privileges.”
But many other religious leaders, including the U.S. Conference of Catholic Bishops, strongly disagree.
Dan Balserak, religious liberty director and assistant counsel at the USCCB, told the Register that the bishops’ principal concern with the act is that “it denies the truth of marriage, which is the Church’s long-standing belief and teaching that marriage is the union of one man and one woman,” and in addition, there are “serious concerns with the act’s impact on religious liberty.”
New York Cardinal Timothy Dolan, chairman of the U.S. bishops’ religious liberty committee, said the supposed protections failed to resolve “the main problem” with the bill, which is that “in any context in which conflicts between religious beliefs and same-sex civil marriage arise, the Act will be used as evidence that religious believers must surrender to the state’s interest in recognizing same-sex civil marriages. Wedding cake bakers, faith-based adoption and foster care providers, religious employers seeking to maintain their faith identity, faith-based housing agencies — are all at greater risk of discrimination under this legislation.”
The USCCB reiterated these concerns in a Nov. 23 letter to Congress, warning that the bill “constitutes a declaration by Congress of a national policy of recognizing legally performed same-sex marriages” and thus will lead “federal agencies to adopt that policy as their own.”
Threats to Tax-Exempt Status
Sharp said “the so-called protections that they offer are really quite hollow once you dig into them,” particularly in contrast to other amendments proposed in the Senate.
For example, while the bill’s language specifies that nothing in the bill itself would be construed to deny tax-exempt status, he said that “nothing stops the IRS from looking at this bill as evidence” from Congress that “national public policy is to require same-sex marriage,” since part of the IRS’ determination of whether a nonprofit gets tax-exempt status is whether the organization is acting in a way that’s “contrary to public policy.”
If the Senate had been serious about protecting the tax-exempt status of faith groups, Sharp pointed out, they could have adopted an amendment from Sen. Mike Lee, R-Utah, which would have explicitly prohibited the revocation of tax-exempt status on the basis of a belief that marriage is between a man and a woman. That amendment, which was backed by the U.S. bishops, would have also barred “discriminatory action” from the government on the basis of that belief, including removal of grant funding or participation in federal programs.
Sen. Lee’s amendment attempted to address another issue highlighted by the bishops — that the bill’s language stating that nonprofit religious organizations “shall not be required” to provide goods and services “for the solemnization or celebration of a marriage” does not extend to individuals with sincerely held religious beliefs in favor of traditional marriage who run small businesses that offer services for weddings. Recent Supreme Court cases involving these individuals include Masterpiece Cakeshop, Arlene’s Flowers, Klein v. Oregon, and 303 Creative. Lee’s amendment would have prohibited individuals from “being denied business licenses or grants or other statuses based on their views about marriage.”
During the Senate debate on the bill, Lee referenced a concession from then-U.S. Solicitor General Donald Verrilli during the oral argument in Obergefell that the potential removal of the tax-exempt status of groups dissenting from a belief in same-sex marriage was “going to be an issue.”
Sharp said that faith groups “sadly ought to take [Verrilli] at face value and recognize that the Respect for Marriage Act is part of this broader effort to ultimately punish people of faith.”