A new bill that would codify same-sex marriage into law is making its way through the Senate but is drawing criticism for its potential threat to religious liberties.
The “Respect for Marriage Act,” likely to pass, would codify the Supreme Court decision Obergefell v Hodges in the face of a bold and originalist Supreme Court. The bill would require federal law to recognize a marriage “between 2 individuals” that are “valid in the place where entered into” — which includes same-sex civil marriage.
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The bill also codifies interracial marriage, perhaps unnecessarily, and as a mode of punishing any Republicans who don’t vote for the bill due to its more controversial, prominent goal. However, this bill poses a serious threat to religious liberty, with a recent amendment providing carveouts to “nonprofit religious organizations” not to participate in “the solemnization or celebration, a point defendants of the bill have argued strenuously.
Simply not true, the bill has clear religious liberty protections pic.twitter.com/TeDuwwtgPa
— William D Johnson (@GMUBillJohnson) November 21, 2022
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However, the bill says nothing about the rights of religious people or institutions of any other kind. Cardinal Dolan of New York noted the danger to religious liberty within the bill in a written statement.
“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. 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.”
Florida Senator Marco Rubio noted the same issue, citing the bill’s lack of specific language.
At issue is the creation of a private right action for “any person who is harmed” by any entity operating “under color of state law” that does not recognize a marriage recognized by the state in which it took place. The intentionally vague phrasing makes the provision ripe for abuse.
Rubio also forecasted the potential consequences of this lack of protection.
“This bill does not protect religious liberty. Nuns running orphanages will find themselves in court if it becomes law. That’s outrageous. No faith-based organization will be immune from the insanity. Christian. Jewish. Muslim. Everyone. Removing this private right of action is the only way to truly protect people and organizations of faith.”
Suppose these protections are not instated, and private action is used to punish religious individuals for living by their faith. In that case, the current Supreme Court will likely strike down the law, but Rubio is trying to avoid things going that far.
According to his website, Rubio has filed an amendment to strike this private right of action from the RFMA and will “use every procedural tool available to force senators to go on the record,” creating a moment of truth for moderate and right-wing senators and exposing their true priorities.
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