S4, Ep. 07: Does the Respect for Marriage Act protect religious liberty?

Amanda and Holly examine the headline-grabbing legislation and important distinctions about marriage

Dec 1, 2022

Can marriage equality and religious liberty co-exist? Amanda and Holly discuss the Respect for Marriage Act, including what led to this bill’s creation, the legislative wrangling to get it passed in an election year, and the bevy of amendments full of political posturing. They also discuss the important distinctions between marriage as a civil institution and marriage as a religious institution. Learn more about the current state of conflicts over LGBTQ rights and religious objections to same-sex marriage and what this means to those conversations.

 

SHOW NOTES:
Segment 1 (starting at 00:55): What is in the Respect for Marriage Act?

Read the text of the Respect for Marriage Act and the amendment passed by the U.S. Senate at this link.

Segment 2 (starting at 09:56): Why does this bill exist, and how did it make its way through the Senate? 

Holly and Amanda discussed this article by Liz Goodwin in The Washington Post: How a bipartisan group of senators got same-sex marriage protections passed

Read Amanda’s response to the compromise that paved the way for the Respect for Marriage Act in this article by Kelsey Dallas for Deseret News:How faith leaders reacted to Senate passage of same-sex marriage protections

Segment 3 (starting at 19:09): An extreme spectrum of reactions to the bill

Amanda and Holly mentioned this article by Tad Walch for Deseret News: Why Latter-day Saints support the amended Respect for Marriage Act

Respecting Religion is made possible by BJC’s generous donors. You can support these conversations with a gift to BJC

Transcript: Season 4, Episode 7: Does the Respect for Marriage Act protect religious liberty? (some parts of this transcript have been edited for clarity):

 

Segment 1:  What is in the Respect for Marriage Act? (starting at 00:55)

 AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m general counsel Holly Hollman. Today we’ll discuss a piece of federal legislation called the Respect for Marriage Act, placing it in the context of ongoing discussions about marriage equality and religious liberty, and whether or not we can have both in this country. Spoiler alert:  We think we can!

We’re going to take a look at how this federal legislative initiative arose, what it says, and how a compromise over religious liberty concerns paved the way for its passage, and what it tells us about the state of these conflicts over rights for LGBTQ people and religious objections to same-sex marriage.

AMANDA: Well, Holly, this really is breaking news, because we are having our conversation today just hours after the Senate passed the Respect for Marriage Act. The Senate passed it on the night of Tuesday, November 29. Now the Act goes back to the House, which passed an earlier version of the Act — earlier this year — and we expect the House to pass the bill and for President Biden to sign it very soon.

And, you know, this act has not received a ton of attention but we at BJC and Respecting Religion have been following it when it arose earlier this year before the midterm elections. But before we talk about how we got here, I think we should first define what is in the Respect for Marriage Act.

HOLLY: That’s right. The Respect for Marriage Act is a piece of legislation that provides federal statutory protection for same-sex marriage and interracial marriage by requiring states to recognize valid marriages. So, you might recall that marriage is a state issue. We know that. We’ve had lots of conversations recently about originalism and textualism and a lot of debates here where we noted that marriage is not identified as a specific right in the federal Constitution. The federal Constitution doesn’t mention it.

But, of course, it is a right that most Americans have taken for granted. Each state has their own marriage laws, and, of course, the Supreme Court found that there was a constitutional right to marriage equality — marriage for same-sex couples — in the 2015 decision Obergefell v. Hodges. So, the idea of this law is that Congress affirmatively supports that decision upholding marriage equality.

AMANDA: Before we talk about the particular provisions of the bill, a threshold issue about how religious freedom relates to marriage equality:  Of course, BJC’s mission is to defend and extend religious freedom for all, and we have seen how religious liberty arguments and debates have intensified at the same time that we’ve seen increased protections for LGBTQ persons and their rights, and particularly around marriage equality.

I would say that we at BJC have not been overly concerned about religious liberty and the protections for religious liberty coming out of the Obergefell decision in 2015, and that’s because, Holly, as you have often reminded audiences how we talk about marriage, we have to be clear about what we’re talking about when we talk about marriage.

HOLLY: That’s right. Well, let me say off the bat that there are definitely implications for religious institutions when marriage is expanded. And we know that this is going to take time — to work out a lot of these changes and differences — but the idea that the civil right of marriage is available to same-sex couples does not in and of itself create a religious liberty problem, if religious liberty is properly understood, and it certainly should not be seen as an attack on religious liberty, as it has been ‑‑ as people have used that kind of language in the public square and many political debates.

And that’s because, you know, people aren’t stopping to think about what is marriage and the fact that marriage is a civil institution — something that comes with, what we talk about in law school, a bundle of rights on the one hand — as well as a religious institution that comes out of biblical or other sacred text traditions and that is governed by those religious principles and traditions.

And so if you stop and think about marriage in these two different ways that it operates in our country generally, I think you can then not be quite so concerned that the expansion or recognition in the civil sphere is somehow an attack on one’s religious beliefs about marriage.

AMANDA: Absolutely. And I think that that distinction between civil marriage and religious marriage is often missed, and I see when we talk about this in audiences, kind of this “aha!” moment, when we stop and differentiate between the two and recognize that that’s part of separation of church and state, that the Congress actually has nothing to say about religious marriage. And so when we’re talking about this Respect for Marriage Act, we are talking only about the civil aspects of marriage.

HOLLY: That’s right. And, as we’ll talk about further, also recognizing that we are a country with a lot of religious differences, and specifically about marriage. So what does this bill do?  There are only a few basic provisions, and it basically affirms the decision in Obergefell, although — as we can discuss — it doesn’t go quite as far as Obergefell does.

The bill begins with some findings about marriage, noting the profound union embodies our highest ideals, and it states plainly ‑‑ and I think this is very important ‑‑ “Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Congress affirms that such people are due proper respect.”

So this is sort of the background for this legislation. And then it makes plain that the Defense of Marriage Act, commonly known as DOMA, is repealed in federal law. Now, this is important, because Congress has never done that, even though that was the effect of earlier Supreme Court decisions, including the Obergefell decision.

The legislation states that full faith and credit is given to marriage equality. That simply means that states will recognize marriages that are validly performed and recognized by state law. For the purposes of any federal law, rule, or regulation in which marital status is a factor, that marriage will be recognized if it was valid in one state.

So that’s sort of the basic provisions, protecting marriage equality, and we’ll talk about why Congress felt that to be necessary. Some people might be thinking, you know, didn’t the Court hold that in Obergefell in 2015? But this is the first time Congress is being very clear about respect for marriage and marriage equality.

So in addition to those basic provisions recognizing marriage equality, there is another provision that says ‑‑ and I’ll read it right here. The title is, “No impact on religious liberty and conscience.”  What Congress is making clear here is that in their recognition of valid marriages, marriages that are entered into validly in any state, that they have to be recognized by other states should that ever come into question.

And they’re making very clear that this is not intended to diminish any religious understanding of marriage, as we were just talking about, recognizing that many religions define marriage differently. Of course, they have different marriage rituals and sacraments, and that’s something that should be recognized. And so Congress is very explicit about this, I think, hoping to take away a very troubling talking point that we’ve seen in this debate in the past.

And here is what that section says in general: “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.”

Okay. So that’s just saying, hey, we’re not taking away anybody’s religious liberty rights. We are simply recognizing valid marriages, and that includes marriage between same-sex couples.

AMANDA: And, you know, that’s a really nicely, artfully worded provision, but shockingly, that didn’t end the debate or the conversation on this issue, as we’ll get into.

 

Segment 2: Why does this bill exist, and how did it make its way through the Senate? (starting at 09:56)

AMANDA: Why do we even have this bill?  Why do we need this after Obergefell?  That goes back to this summer and the landmark decision in the Dobbs case, and in particular, a concurrence to the majority opinion in that case written by Justice Clarence Thomas.

HOLLY: Yeah. And everybody should remember ‑‑ I mean, I hope ‑‑ they probably don’t need a reminder, but just in case because there has been so much going on ‑‑ the Dobbs case was that landmark case that was issued in late June ‑‑ you know, sort of reissued, because we’d seen the draft earlier that overturned Roe v. Wade and the constitutional right to abortion. So that obviously was newsworthy for a lot of reasons, but including something that relates to marriage rights.

AMANDA: Thank you. Yes. That’s a helpful reminder. I feel like we live and breathe in these Supreme Court cases. So in Justice Thomas’s concurrence in the Dobbs opinion, he wrote this. “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold” ‑‑ that was the case that held for a right to contraception — “Lawrence” ‑‑ which was a case that protected intimacy in relationships, striking down a law prohibiting private homosexual activity between consenting adults ‑‑ “and Obergefell.” ‑‑ which, of course, protected marriage equality.

Justice Thomas went on: “Because any substantive due process decision is demonstrably erroneous, we have a duty to correct the error established in those precedents.” So that language by a sitting Supreme Court justice definitely caught the attention of Congress and influenced the introduction and now the imminent passage of this piece of legislation to protect these rights to marriage equality with an act of Congress.

HOLLY: That’s right. So it was that concern that motivated the House to pass an earlier version of the Respect for Marriage Act, one that actually did not have that religious liberty language. That happened in July. You know, the Dobbs decision was released in June, and then this act went to the House. It was introduced July 18. It passed the next day, July 19, on a bipartisan basis with all Democrats voting yes and 47 Republicans voting yes.

AMANDA: And that is truly remarkable. In an election year, right before the midterm election, to see this strongly bipartisan bill ‑‑ what’s not so remarkable is the House acting that quickly. Reminder:  I worked for a member of the House of Representatives for eight years, and the House can act very quickly.

HOLLY: Uh-huh.

AMANDA: So that is not that unusual, but to do so with 47 members of the minority party voting with all members of the majority party in an election year is remarkable.

HOLLY: So remarkable, I think a group of senators took note and said, Wait a minute; maybe we can get something done here. And that’s what happened. That’s what led to this bill that passed the Senate this week. It’s called ‑‑ we call it the Bipartisan Amendment Bill, because it’s the bill that the House passed with the significant religious liberty provision added.

And I think a group of senators talked to Majority Leader Schumer, and there were discussions about whether this would go to a vote in the Senate, and this group of senators persuaded Senator Schumer to postpone a vote until after the election. I remember thinking about that and what’s going on. What are the, you know, political ups and downs of bringing this to a vote now?

And there is actually a very helpful story in The Washington Post this week by Liz Goodwin that says exactly how this happened. The name of the article is “How a bipartisan group of senators got same-sex marriage protections passed.”

I will say that I know that this happened because this group of senators had been seriously thinking about, working on issues of LGBTQ rights and listening to concerns from religious groups that opposed same-sex marriage, that had concerns about how the Obergefell decision was impacting their religious institutions. And so I think the fact that they had already been in some of these debates that have come up in the discussion of the Equality Act and an act called the Fairness for All Act, had them ready to see this and to seize on it, that something productive could happen.

AMANDA: I think this is another case also where representation matters. The Washington Post points out that Senator Tammy Baldwin was a leader of this bipartisan group of senators, working to get this amended bill together that could attract the votes needed from Republican senators in order to ensure final passage. Senator Baldwin is a lesbian, and she was able to build relationships.

And in this article from The Washington Post, it talks about how she could authentically say, this is not just a Democratic talking point; this is personal to me; this is why I am pushing for this bill. Senator Baldwin’s colleague, Senator Kyrsten Sinema from Arizona, was another leader in this group, and she is bisexual. So this article talks about the ability to build trust and build relationships with a bipartisan group of senators, and that really allowed the bill to have the votes for final passage.

And as a reminder, Senate procedure, it takes 60 votes to bring a bill up in most cases for a vote because of the filibuster rules in the Senate and how many votes you need to invoke cloture, all these arcane rules of the Senate. But here’s an example of those rules really working to get a better piece of legislation ‑‑

HOLLY: Right.

AMANDA: — one that can bring more people together and hopefully bring more understanding about these religious liberty concerns that have been raised from some people.

HOLLY: So it looks like she quickly got to work with this group of senators. Again, that’s outlined very clearly in this Washington Post article, and before the Thanksgiving break, it cleared a major procedural vote that, you know, looked like this is going to pass. So once that language was added to make sure that this bill was understood, that it was not intended and did not have an impact on any institution’s religious liberty rights, it was set to pass.

AMANDA: And that was big news — when we got news that this amendment had been worked out, that there was an agreement on the amended bill, and that came in mid-November. And when that happened, I put out a statement on behalf of BJC, applauding Republicans and Democrats working together to advance civil rights protections for same-sex and interracial couples, while reaffirming existing religious freedom protections, and particularly these provisions that recognized that there is a diverse range of views on marriage among religious traditions and that we don’t have to pit marriage equality against religious freedom.

HOLLY: Yeah. I think that was good news. And we know that that’s one small step in a larger debate that we will continue to have to work out in lots of different settings. So it seemed like, okay, that’s going to be good news. This is going to take ‑‑ one, it’s going to lower the temperature, at least with regard to marriage. But then what happened?  Something happened. It wasn’t over yet.

AMANDA: It’s still the U.S. Senate. There’s got to be some gridlock. There’s got to be some slowing down of the legislative process.

HOLLY: So what we saw was that all of a sudden we had other amendments that came out. We had Republican senators putting out at least a few additional amendments, all proposed as religious freedom amendments. They were proposed and debated and eventually defeated. All of these efforts were based on the notion that this act, the Respect for Marriage Act, was somehow harmful to religious freedom.

So even though you had these five senators who had worked together with, you know, different interest groups to be really clear that they were advancing the ball on this debate, you know, there were those who were continuing kind of to throw mud at the effort and to make it seem confusing or harmful to religious freedom.

AMANDA: But in the end, because all three failed, I think it’s fair to say that the amendment process, this additional amendment process, had no impact on the final vote which had strong bipartisan support for final passage in the Senate.

 

Segment 3: An extreme spectrum of reactions to the bill (starting at 19:09)

HOLLY: So what does this Respect for Marriage Act demonstrate about religion, religious liberty, and religious differences in the law?  Well, for one ‑‑ and we’ve noted it already ‑‑ there is no religious unity on marriage. There are a lot of differences, and we should just recognize that.

But there is an ability to come together to protect civil marriage rights for all Americans, and that’s really important. I just think that we can’t emphasize enough the religious diversity and respect for that religious diversity, so that we have to work out where we come together through our democracy to protect rights for each other.

Secondly, I think that the religious liberty debate here really reflects some anxiety from some religious quarters about changes in the law and culture surrounding same-sex marriage, and that’s just something to note, and people have very strong feelings on different sides of this, and we have tried to recognize and treat respectfully these different perspectives.

I think that we just have to note that some religious traditions feel this more than others, and recognizing that is important. So, for example, those traditions that hold strongly to marriage as between one man and one woman and that’s the only kind of marriage they can recognize, they’ll continue to preach and teach according to their doctrines and traditions and teachings, and BJC defends their right to do so.

AMANDA: Absolutely.

HOLLY: And, as they do that, they are also dealing with concerns about the reach of nondiscrimination laws and how that affects them and their religious institutions, and they have real concerns about acting in ways that may appear to be in conflict with their religious principles. And so I think that’s a real challenge for some religious entities, and it doesn’t affect all religious entities equally obviously, because, as we noted, the religious diversity.

Recognizing that fact, though, we also see this event as a positive, a positive thing that through real efforts, bipartisan efforts, talking, explaining, understanding, you can come to some agreement, so that different people can respect the positions of others without doing great harm. I think that’s really important.

But also I think what we see in this debate is that there is still a powerful temptation to equate rights for others, for LGBTQ people, as an attack on religious liberty, and that’s disheartening. So in the whole amendment process, that was, you know, a continuing concern, and I think it will be as other debates go forward.

The rights recognized by marriage equality should not be perceived as taking away religious beliefs or the way religious marriages are performed or recognized in any religious tradition or religious congregation or other religious entities.

AMANDA: And you don’t just have to take our word for that, Holly. I mean, we can look at where we saw support for the bill, including religious groups that hold the doctrine that marriage is only between a man and a woman, and I’m noting here particularly The Church of Jesus Christ of Latter-day Saints which supported passage of the bill, as did the Council for Christian Colleges and Universities.

And I thought that Elder Jack Gerard of the Church of Jesus Christ of Latter-day Saints put it particularly well in an interview that he did with Deseret News, which we will link to in the show notes. The elder said, “First, it is clear our well-known doctrine on marriage will remain unchanged. This does not change church doctrine. In fact, the religious freedom amendments in the Respect for Marriage Act support our ability to practice our doctrine.”

And he went on, “Second, the support of these amendments will ensure that all religious people and institutions are respected and protected, even though they have a doctrine or practice that’s inconsistent with the law of the land.”

HOLLY: Yeah. I think what he’s getting to ‑‑ and this was something that Senator Collins pointed out on the floor of the Senate in the debate ‑‑ is that this legislation gives proper respect to these diverse beliefs. You know, people are not going to agree, and, you know, they’re not always even going to speak respectfully about them.

But this language recognizes these religious differences, and it makes clear that Congress is saying that support for same-sex marriage is not in any way denigrating other views of marriage, so it is not the federal policy of the United States government to say that the, if you want to call it “traditional view” of marriage or “heterosexual only” view of marriage or however you want to characterize that, is out of favor. It’s not out of favor in federal law. Instead, it’s a clear statement that there are diverse religious views and that marriage equality should be the law of the land.

AMANDA: So despite that very clear statement in the law, the legislation itself, and stated by senators, we had some extreme reactions from other groups to the passage of the law, and that ‑‑ some of those extreme reactions came from the interest group Alliance Defending Freedom, as well as some leaders in the Southern Baptist Convention and in the United States Conference of Catholic Bishops.

For instance, Al Mohler, president of Southern Seminary, said that the bill “subverts marriage,” and that those who refuse to celebrate all marriages will be censored and cancelled. Cardinal Timothy Dolan wrote of the “far reaching harms of the bill,” and that it would fail “to afford space in the public square for those who offer an authentic witness about marriage.”

HOLLY: Okay. Well, then, I’m glad you read that part, because I would have trouble doing that. But, anyway, let me ask ‑‑ I would like to ask Al Mohler, I mean, what kind of church is he going to? The fact that he thinks people, by refusing to celebrate all marriages, which I think is the case in Southern Baptist churches, is somehow going to cancel them, I don’t ‑‑ there’s no change here. They’re going to continue to celebrate marriage the way they have in the past, so I think this is a terrible, terrible overstatement, and it also shows a lack of confidence in his church teachings and the commitment of the Christians that go to these churches.

AMANDA: Yeah. And, of course, he’s tapping into this fear-mongering about the so-called “cancel culture,” that to have your views debated in society is somehow to end in persecution. And that’s really the crux of all of these statements that make over-the-top claims that this bill would harm religious freedom and would end in the persecution of Christians who hold the view that marriage is only between a man and a woman.

And some of the rationales given, particularly in the piece from Alliance Defending Freedom, feel disingenuous, because these groups have opposed other bills, like the Equality Act, on the basis that the Religious Freedom Restoration Act, for instance, wouldn’t apply, that there’s an explicit carve-out from that federal religious freedom protection in the case of LGBTQ rights.

HOLLY: That was the reason for opposing the Equality Act. The Equality Act is this broad piece of legislation that would protect LGBTQ rights in all ‑‑ basically all civil rights laws. Correct?

AMANDA: Correct. Yeah.

HOLLY: And it carves out and says you can’t make any religious claim for some kind of exemption to this law. And so in the past, groups have focused on that as being the reason this is an affront to religious liberty.

AMANDA: Right. And the reason to oppose the bill. They’ve also said that they oppose bills like the Equality Act because of potential impacts on houses of worship, and again, having some worst-case scenarios of how houses of worship might be forced to recognize marriages or to celebrate marriages.

But then in this case, when we have a bipartisan amendment that is negotiated, that addresses both of those concerns ‑‑ the bipartisan amendment both affirmatively provides that RFRA does apply, and it also makes clear that houses of worship and nonprofit entities with a principally religious purpose won’t be forced to solemnize or celebrate all marriages.

Once that amendment is included, then these groups claim that this bill is an attack on religious freedom. And so it feels to me like nothing would assuage their so-called religious freedom concerns, short of overturning Obergefell, that as long as there is marriage equality, that they will have religious liberty concerns.

HOLLY: Yeah. And that’s where we have so much then confusion over religious liberty and what it means, because as we often say, religious liberty, protected in the First Amendment, part of the proud American tradition in our democracy, this special protection for religion through religious liberty provisions does not mean that you have a right for the laws to line up perfectly with your religious beliefs ‑‑

AMANDA: Exactly.

HOLLY: — even if you are the big Christian majority or you’re holding beliefs that were once part of a Christian majority.

AMANDA: Yeah. And ADF’s arguments here are particularly curious, given that they’ve had such a winning streak at the Supreme Court on their First Amendment claims, on their claims for free exercise. They have celebrated their victories on this expansive understanding of free exercise, and yet they’re saying here that Congress’s reaffirmation of First Amendment protections just isn’t enough to protect their religious freedom.

Well, so why does this bill matter so much?  I mean, we’ve talked about how it basically just reaffirms religious liberty protections while also solidifying a right that was already recognized by the Supreme Court just seven years ago in Obergefell. Here are some of the reasons I think why this is something that was certainly worth a conversation on Respecting Religion and all of our attention.

One, Obergefell‘s holding, at least in the recognition of marriage equality from state to state, is now, once President Biden signs the piece of legislation, codified in federal law. And this provides an important additional protection for marriage equality. And, compare this to the state of abortion rights in the wake of Dobbs, which has no federal right to an abortion and now we’re seeing the repercussions of that in states across the country.

Two, the bipartisan support for the bill and the support from religious groups who hold different views on marriage shows us that compromise can be worked out and that we need not pit marriage equality against religious freedom.

And, three, as it should be in a democracy, these bills reflect where the country is on marriage equality. A majority of Americans, including a majority of religious Americans from all religious backgrounds, affirm marriage equality, and so we see that majority opinion being reflected in this bill.

HOLLY: I think what’s most hopeful to me is that we are seeing progress on people understanding the difference between civil and religious marriage, and that has only come through hard work, a lot of conversations, a lot of people listening to each other, and that we cannot recommend highly enough. But we are hopeful that that might ease future conversations, future conflicts and controversies, and that would be good. That would support religious freedom for all.

AMANDA:  That brings us to the close of this episode of Respecting Religion.

HOLLY:  Thanks for joining us for today’s conversation. For details on what we discussed, including links to the articles we mentioned, check out our show notes.

AMANDA:  If you enjoyed today’s conversation, give us a five-star rating. Then share this program with others on social media and tag us. We’re on Twitter and Instagram and also YouTube @BJContheHill, and — at least for now — you can still follow me on Twitter @AmandaTylerBJC.

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HOLLY:  And take a moment to find out more about BJC and how we’ve been working for faith freedom for all since 1936. Visit our website for a look at what we do and some of our latest projects

AMANDA:  Join us back here on Thursdays for new conversations Respecting Religion.