Respect for Marriage Act Will Not Create Predicted Firestorm

In his recent piece, “Society-altering Respect for Marriage Act likely to create firestorm akin to Roe v Wade” my colleague, Chris Bedford, argued against the proposed Respect for Marriage Act (RFMA). The law, which was passed in the Senate on a 61-36 vote and the House on a 258-169-1 vote, would codify parts of Obergefell v. Hodges and Loving v. Virginia to create federal protections for same-sex and interracial marriages. 

Bedford argues that the Respect for Marriage Act parallels the nation’s muted response to Roe v. Wade. “In 1972,” he writes, “the supreme American court pushed forward on a societal-altering path, lulled into complacency by its relative popularity.” He contends that the same is happening now with the RFMA, which would result in the stifling of religious freedom and the death of federalism. I disagree.

Over the summer, many Americans grew fearful of Obergefell’s fate in the wake of the Court’s Dobbs decision that ended federal protection for abortion. In his concurring opinion, Justice Clarence Thomas suggested that the Court should also “reconsider” cases codifying same-sex marriage. And while the Court has not taken up a case challenging Obergefell, Justice Thomas’s remarks have concerned many same-sex marriage advocates, who have proposed the RFMA to protect these civil safeguards before the Court has the opportunity to overturn the judicial precedent.

The bipartisan group of senators who voted for the bill have argued that its constitutionality rests upon three premises. First, the bill is in accordance with the precedence set by the Obergefell decision and that it is in the enumerated powers of Congress to settle the issue through the legislative process. Second, federal recognition of the same-sex marriage license of any state is supported by the Constitution’s full faith and credit clause. Third, privileges granted to married couples (i.e., tax status, power of attorney, legal guardianship, etc.) are extended to same-sex couples under the equal protection clause of the Fourteenth Amendment.

Originally, the RFMA had no protections of religious liberty when first introduced this past summer. At the insistence of Republicans, however, the bill was amended in November to include language explicitly protecting freedom of religion and conscience.

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.

The bill also protects religious schools, institutions, and organizations from being forced to “provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage” that are performed outside of their faith tradition. Refusal to provide any of these services or accommodations to a same-sex couple will not trigger a civil claim in the court system. Both religious institutions and individuals who practice any faith tradition can refuse to accommodate a same-sex couple without the threat of prosecution.

Conservatives commonly argue that the RFMA does not do enough to insulate America’s religious communities. Bedford says this explicitly when he argues that “while the act acknowledges the First Amendment … the protections are both narrow and meaningless.” He writes later that “the protections necessary to actually safeguard people from living their beliefs never materialize in the text.” In a statement made after the Senate vote, the Heritage Foundation went a step further and lamented that Congress “no longer believes in religious liberty.”

But this is simply not true. RFMA protects religious liberty explicitly. Since Obergefell was decided in 2015, the Court has ruled on two landmark cases with a similar narrative and decided in favor of religious liberty and expression. In Masterpiece Cakeshop v. Colorado the Court concluded that the Colorado Civil Rights Commission’s actions against a private business owner for refusing to make a cake for a same-sex wedding celebration violated the First Amendment’s free exercise clause. In Fulton v. City of Philadelphia, the Court unanimously found that the city’s refusal to contract with Catholic Social Services unless the organization agreed to allow same-sex couples to be foster parents violated the organization’s right to the free exercise of their religious views. 

But the courts are not the only place where we’ve seen religious liberty strengthened in the wake of growing protections for gay Americans. Federalism has also played a key role in strengthening protections for religious communities at the state and local levels. According to data compiled by the Center for Religion, Culture, and Democracy, nineteen states have passed some form of legislation to exempt either clergy or religious organizations (or both) from participating or conducting same-sex wedding ceremonies. Even more interesting is that both conservative-leaning and liberal-leaning states have codified specific protections to organizations should they refuse services to same-sex couples, specifically the tax exempt status of religious non-profits.

Bedford predicts that when the RFMA is signed into law, the federal recognition of same-sex unions will essentially destroy American self-government. Religious liberty and federalism will end up, he argues, “in the hangman’s noose.” The constitutional precedence currently being affirmed and reaffirmed by the Court and in state assemblies across the Union rejects this conclusion. If anything, RFMA’s passage should embolden a new wave of genuine federalism among the states to pass legislation similar to that of Washington, Maine, Oklahoma, and Mississippi. 

One of his criticisms is that the bill’s First Amendment protections are both “narrow and meaningless.” But if that’s true, then it’s actually a good thing for federalism! It emboldens states to pass legislation tailored to their own needs that protects religious liberty, comparable to statutes already on the books in nineteen other states.

A good case study on this point is Mississippi. The Magnolia State is the only one in the Union to protect the right of for-profit businesses to refuse offering goods and services to marriage ceremonies and celebrations that violate religious beliefs. If conservatives are genuinely concerned that RFMA’s passage will threaten religious liberty and federalism, then they should be advocating for stronger protections at the state and local levels. The bill’s broad language protects First Amendment rights while encouraging a more robust sense of federalism.

Freedom of religion is an essential, unalienable right. It is a concept older than the nation itself. But the First Amendment is inherently defensive; it protects religious organizations and individuals from government overreach. Strong protections of religious liberty and expression at both the state and federal levels has largely defanged Bedford and other conservative commentators’ concerns. Not only that but RFMA’s passage should embolden a renewed federalism, further protecting religious liberty. And this is something that will benefit gay Americans and red and blue states.