WASHINGTON — A bill making its way through Congress that would codify same-sex civil marriage in federal law is a threat to religious liberty, critics say.

The bill, called the Respect for Marriage Act, would require federal law to recognize marriages “between 2 individuals” that are “valid in the place where entered into” — which includes same-sex civil marriage.

The current version of the bill, thanks to an amendment added last week, includes language offering protection for “nonprofit religious organizations” not to participate in “the solemnization or celebration” of a same-sex civil marriage.

But opponents, including Cardinal Timothy Dolan, say that’s not enough.

“Those protections fail to resolve the main problem with the Act: 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,” said Cardinal Dolan, the archbishop of New York and chairman of the U.S. bishops’ Committee for Religious Liberty, in a written statement. 

“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 cardinal called the bill “deeply concerning” and called on senators to “reverse course” on it.

 

Marriage Act Momentum

Yet the bill appears to be on a smooth path to passage. The bill got a key endorsement from the U.S. Senate last week, passing the 60-vote threshold needed to cut off debate and proceed to a floor vote. The so-called cloture motion passed 62-37 on Nov. 16, with support from all 48 Democrats, both Independents who caucus with the Democrats, and 12 Republicans. Nineteen Catholic senators voted for the bill. (One Republican did not vote.) That means the Senate will likely approve the bill. 

The House of Representatives passed a different version of the bill on July 19, 267-157. (All 220 Democrats voted for it, plus 47 Republicans.) If the two chambers agree on a version, they can approve it before the new Congress convenes in early January 2023 and send it to President Joe Biden, who supports the bill and says he’ll sign it into law.

Supporters of the measure say it’s necessary to protect same-sex civil marriage, which has been legal everywhere in the United States since June 2015, when the U.S. Supreme Court decided that the U.S. Constitution protects it. In its decision in Obergefell v. Hodges, a 5-4 majority found that same-sex civil marriage is “central to individual dignity and autonomy” and is therefore one of the “fundamental liberties” protected by the 14th Amendment, which says a state cannot “deprive any person of life, liberty, or property, without due process of law.”

At the time of the Obergefell decision, same-sex civil marriage was legal in 16 states, stemming from state statutes and state court decisions.

The legal doctrine the U.S. Supreme Court relied on, known as “substantive due process,” uses the 14th Amendment as a way to recognize certain liberties deemed fundamental but not mentioned in the Constitution.

Justice Clarence Thomas voiced his opposition to the doctrine, in his concurring opinion in the Dobbs abortion case that overturned Roe v. Wade. He wrote this past June that the Supreme Court “should reconsider all of this Court’s substantive due process precedents,” including Obergefell.

Opponents of the same-sex-civil-marriage bill in Congress say the court is unlikely to revisit the Obergefell decision, since there are currently no legal challenges to it.

 

Catholic Teaching on Marriage

The Catholic Church teaches that God created marriage as a lifelong covenant between one man and one woman to bring them together as one and to have children.

In 2003, the Vatican’s Congregation for the Doctrine of the Faith stated: “There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God's plan for marriage and family. Marriage is holy, while homosexual acts go against the natural moral law.” 

The same congregation quoted that statement approvingly in March 2021, in a document stating that the Church cannot bless same-sex unions.

Nor has the Vatican kept the Church’s teaching on marriage a matter just for Catholics.

In 2016, Pope Francis stated in his apostolic exhortation Amoris Laetitia (The Joy of Love) that “same-sex unions … may not simply be equated with marriage.”

In February 2015, Pope Francis praised the “efforts” of the Catholic Church in Slovakia “in defense of the family” — three days before a nationwide referendum there asking voters if marriage is only between one man and one woman.

 

Religious-Liberty Amendment

Supporters of the same-sex-civil-marriage bill in Congress say the religious-liberty amendment added to it last week should put to rest concerns about religious freedom, but the Catholic Church in the U.S. is cautious.

“The Respect for Marriage Act maintains the status quo around religious freedom and the amendment helped this important bill cross the finish line,” said Rachel Laser, president and chief executive officer of Americans United for the Separation of Church and State, which supports same-sex marriage, in a written statement to the Register.

Laser called the bill “a vital step in our nation’s march toward freedom without favor and equality without exception” and said that it “ensures that we all can live as ourselves and marry the person we love.”

The religious-liberty amendment to the bill drew positive reaction from several religious groups that define marriage as being only between one man and one woman, including the Church of Jesus Christ of Latter-day Saints, the Seventh-day Adventist Church in North America, and the National Association of Evangelicals.

Yet Cardinal Dolan, on behalf of the U.S. bishops, doesn’t find the religious-liberty amendment adequate.

“The Catholic Church will always uphold the unique meaning of marriage as a lifelong, exclusive union of one man and one woman. In doing so, we are joined by millions of what the Obergefell Court called ‘reasonable and sincere’ Americans — both religious and secular — who share this time-honored understanding of the truth and beauty of marriage,” Dolan said in a written statement late last week. “The bill is a bad deal for the many courageous Americans of faith and no faith who continue to believe and uphold the truth about marriage in the public square today.”

Opponents’ Concerns

The bill enables the U.S. Department of Justice and individuals “harmed by a violation” of the act to file a civil lawsuit in federal court.

Opponents of the bill say it includes vague phrases that encourage litigation that would hurt defendants even if they end up winning — a situation known among lawyers as “the process is the punishment.”

One opponent said he finds it curious that the bill has not gone through public hearings before legislative committees, a commonplace practice for major public-policy measures. If it had, he said, hearings might have alerted members of Congress to what he describes as flaws in it.

On Nov. 21, Sen. Marco Rubio, R-Fla., filed an amendment to strike the private right of action from the act. According to his website, he “will use every procedural tool available to force senators to go on the record.”

David Trimble, vice president for public policy for the Religious Freedom Institute, which opposes the bill, noted that the bill states, “No person acting under color of State law may deny … full faith and credit to any public act, record, or judicial proceeding … pertaining to a marriage between 2 individuals …”

The words “under color of state law” bother him, he said; he suggested that they could apply to religious institutions that receive government funds or are closely connected with government policies.

“The use of that phrase is ambiguous and dangerous for religious freedom. The criteria for determining who or what organizations are state actors are so broad that they could sweep up any organization that dissents from same-sex marriage,” Trimble told the Register by email. “The problem is it opens the door wide for religious organizations that support traditional marriage based on religious convictions to be subjected to litigation and significantly higher risk of liability. Even if they win, they will have faced potentially ruinous costs and a government-imposed burden upon the free exercise of their faith.”