The Only Way Forward

Religious liberty and the Respect for Marriage Act
Activists in Washington D.C. hold a rally outside the U.S. Supreme Court, 2019 (CNS photo/Jonathan Ernst, Reuters).

As I write this in late November, the Respect for Marriage Act appears to be headed for passage in the lame-duck session of Congress. It will likely be law by the time this piece appears in print. If not, it will have been a serious missed opportunity. The bill would protect same-sex marriage and protect religious liberty with respect to marriage.

The bill passed a crucial test on November 16, when all fifty Democrats and twelve Republicans voted to open Senate debate. That required sixty votes, and ending debate will also require sixty votes. Once they get that far, actually passing the bill will require only fifty-one votes. All this is according to the arcane rules of the Senate.

The bill would recognize, for all purposes of federal law, any marriage between two people that is valid in the state where the couple was married. And it would require the states to recognize most marriages from sister states. The bill would not enact a federal definition of marriage: the validity of any marriage would still depend on the law of the state where the marriage was licensed and celebrated. Under the bill, no state may refuse to recognize a marriage from a sister state because of the sex (or race, ethnicity, or national origin) of the spouses in the marriage. As long as there are states where same-sex couples can go to get married, their marriages would be recognized throughout the country.

None of this matters as long as same-sex marriage is constitutionally protected. But the Supreme Court recently overruled all its cases recognizing a constitutional right to abortion, and Justice Thomas pointed out that under the Court’s reasoning, all the gay-rights cases should also be overruled. Justice Alito, writing for the majority, responded that abortion is unique and that no other right was implicated.

They were both half right and half wrong. The Court said that there is no constitutional right to choose abortion because abortion is not expressly mentioned in the Constitution, and because there is no long tradition, going back to the nation’s early years, of protecting that choice as a right. Those arguments are equally applicable to same-sex marriage, and that was Justice Thomas’s point.

The Court also said that abortion is unique, because only abortion involves the taking of an unborn human life or—as others see it—a potential life. That was Justice Alito’s point: same-sex marriage is different because no life or potential life is at stake.

Going forward, the Court is free to choose between these two rationales. It could reaffirm the gay-rights cases because same-sex relationships are so different from abortion, or overrule those cases because abortion and same-sex marriage rest on the same foundation—or lack of one—in constitutional text and history.

Especially now that it has seen the political reaction to overruling the right to choose abortion, it seems unlikely that the Court would also overrule the right to same-sex marriage. But no one knows how far the Court’s new conservative majority will go. The Respect for Marriage Act is an insurance policy for same-sex couples: their right to marry will be protected by federal statutory law even if the Supreme Court decides that their rights are no longer protected by federal constitutional law.

In exchange for this insurance policy, the bill also provides protections for religious liberty. First, it includes an express congressional finding that “diverse beliefs about the role of gender in marriage”—including the belief that marriage can be only between a man and a woman—“are held by reasonable and sincere people based on decent and honorable religious or philosophical premises” and that “such people and their diverse beliefs are due proper respect.”

The Respect for Marriage Act is an insurance policy for same-sex couples.

This is an express congressional repudiation of the frequent attempt to equate religious opposition to same-sex marriage with racist opposition to interracial marriage. It is unlikely to persuade the advocates who make the comparison, but it is principally addressed to the courts—and there it is a powerful statement of national policy. This finding urges respect for religious organizations and believers that adhere to traditional views of marriage, and it denies that governments at any level have the same strong interest in suppressing traditional religious practices that they have in suppressing racist practices.

Second, the bill provides that no “nonprofit religious organization” shall be required to assist with the solemnization or celebration of any marriage. And no such organization can be sued for refusing to do so. Nonprofit religious organizations are defined with an all-inclusive list of examples. This provision is like the protections for same-sex couples in one way: it is something of an insurance policy. Demands that clergy officiate at weddings, or that religious organizations provide facilities for weddings or receptions, have not been much of an issue so far. But the winners in any social conflict often escalate their demands as they become more dominant, so this could be an important protection in the future.

Third, the bill says that nothing in the bill can be used “to deny or alter any benefit, status, or right” of any person or organization, including tax exemption, education funding, accreditation, government grants or contracts, government loans or scholarships, licenses or certifications, or anything else that individuals or organizations get from government. Efforts to make government benefits conditional on support for same-sex marriage have already been an issue. This provision is both an important legal protection and another important statement of congressional policy.

 

The bill is equally important as a model for further legislation. It shows what should have been obvious to all—that legislative progress on gay rights requires corresponding protections for religious liberty. The bill is a compromise, and like any good compromise, it leaves both sides somewhat unsatisfied. But compromise is the only way forward.

Conservatives in Congress have introduced bills with names like the First Amendment Defense Act, which would provide absolute protection for religious beliefs and practices about marriage and zero additional protection for same-sex couples. Liberals have introduced bills with names like the Equality Act, which would prohibit sexual-orientation or gender-identity discrimination in every area of federal regulation that protects individuals, provide zero protection for religious liberty, and actually repeal existing protections for religious liberty.

Neither side can pass such one-sided legislation. But hardliners on both sides have opposed any compromise. They would rather do without legislative protection for their own rights than permit any protection for the other side’s rights.

A lone exception is an important statutory compromise in Utah a few years ago. One of the reddest of red states now has a statewide ban on sexual-orientation and gender-identity discrimination in housing and employment, with substantial protections for religious liberty. But hardliners on both sides denounced the Utah bill, and they have prevented any similar compromise in any other state, or in Congress, until now.

This new religious liberty legislation is possible because—and only because—it is the fruit of compromise.

Hardliners on both sides are also denouncing the Respect for Marriage Act. This time, conservative groups have been louder and angrier than liberal groups. And this time, more moderate conservative religious groups have spoken up. The National Association of Evangelicals, the Seventh-day Adventists, the Council for Christian Colleges and Universities, the Church of Jesus Christ of Latter-day Saints, the Orthodox Union (an umbrella group for many Orthodox Jewish organizations), and the Institutional Religious Freedom Alliance (an interfaith group that works to secure equal government funding for religious providers of social services) have all written key Senators to endorse the bill’s protections for religious liberty.

Unfortunately, the Catholic bishops have repeatedly denounced the bill. They complain that the bill does not solve every religious-liberty problem that might arise from religious conflict over same-sex marriage. That is true; it does not. But it solves the religious-liberty problems that might have arisen from this bill. And responding to the bill’s own issues is all that it can be expected to do.

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. Broader legislative protections for either side in the conflict between same-sex couples and traditional believers will require negotiating correspondingly broader legislative protections for the other side.

And that is what the bishops appear to really oppose. Even if the bill provided ironclad and absolute protection for every imaginable issue of religious liberty, it seems reasonably clear that the bishops would still oppose the bill, because it protects same-sex marriage. The bishops oppose the bill because its “rejection of timeless truths about marriage is evident on its face and in its purpose,” according to a letter on the Conference of Catholic Bishops letterhead from Cardinal Timothy Dolan of New York and Bishop Robert Barron of Winona-Rochester, Minnesota, who chairs the bishop’s Committee on Laity, Marriage, Family Life and Youth.

If the Catholic view of marriage is the only true one and all other views are false, and if such falsehoods can never be enacted in legislation, then the adequacy or inadequacy of religious-liberty protections becomes irrelevant. The bishops will oppose any legislation that provides any protection for same-sex marriage, because such legislation rejects what is true and protects what is false. Compromise becomes impossible on this view, and if compromise is impossible, then legislative protection for religious liberty on these issues is also impossible. This intransigence, from the bishops and from many conservative Protestant groups as well, has done enormous damage to the cause of religious liberty in America.

Thirty years ago, religious liberty had broad bipartisan support as a fundamental human right. In 1993, Congress passed sweeping religious-liberty legislation—the Religious Freedom Restoration Act—unanimously in the House and 97-3 in the Senate. And the three weren’t opposed to the principle; they were just holding out for an amendment to exclude prisoner litigation. President Clinton, a Democrat, enthusiastically signed the bill.

The bishops opposed the Religious Freedom Restoration Act, because the bill wasn’t perfect, and they held it up for three years despite its overwhelming support. No bill is ever perfect. But it was that Act that later protected the right of the bishops and religious orders and lay Catholic employers to refuse to provide contraception or possible abortifacients to their employees.

By 1998, bipartisan consensus in support of religious liberty had given way to gridlock—mostly on party lines, but at first not entirely so. The rise of gay rights, and conservative religious opposition to it, had completely changed the politics in just five years.

The politics have gotten steadily worse over the past two decades. Far too many liberal and progressive Americans have become hostile to religious liberty, mostly because they have come to see hostility to gay rights as the signature issue of American believers. Passing religious-liberty legislation has become nearly impossible at either the state or national level. By now, the gridlock is almost entirely partisan. Republicans oppose all gay-rights legislation, and Democrats oppose all religious-liberty legislation because of fears about gay rights, contraception, and abortion. Both sides have been intransigent; there is plenty of blame to go around.

In this political context, the Respect for Marriage Act is an important breakthrough. Fifty Democrats, and twelve courageous Republicans (more courageous only because, this time, the political pressure on them has been more intense than that on the Democrats) have stood up to their hardliners. This bill would be the first significant religious-liberty legislation since 2000, when Congress enacted two narrow pieces of a much broader bill that had died in the partisan gridlock. This new religious liberty legislation is possible because—and only because—it is the fruit of compromise. It provides important partial protection for both sides.

I hope that no senator is intimidated by the hardliners, and that the bill makes it all the way to the president’s desk. He has said that he will sign it. And I hope that the bill becomes a model for further compromise, and further protection for the human rights of both sides in this deep national debate.

Published in the January 2023 issue: 

Douglas Laycock is the Robert E. Scott Distinguished Professor of Law and professor of religious studies at the University of Virginia. He is the author of the five-volume collection, Religious Liberty.

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