Last week the Senate moved the Respect for Marriage Act forward toward passage. Names of congressional bills often don’t tell you much. What would this bill actually do?
The bill would repeal the Defense of Marriage Act, the 1996 law that says that for all purposes of federal law, marriage is only between one man and one woman. That law has been unconstitutional and unenforceable since the Supreme Court’s 2015 decision in Obergefell v. Hodges, which found a constitutional right to same-sex marriage.
Supporters of same-sex marriage want the old law repealed, just in case the court ever overrules Obergefell. The new bill says that for all purposes of federal law, the government will recognize any marriage between two people that is valid in the state where the couple was married.
The Defense of Marriage Act also says that no state has to recognize a same-sex marriage from another state. That too would be repealed; the new bill says just the opposite. 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.
The bill also has explicit provisions to protect religious liberty.
Twelve Republicans, including Utah Sen. Mitt Romney, joined all 50 Democrats to break a filibuster and open debate on this bill. They will have to do it again, with at least 60 votes, to end that debate and actually vote on the bill.
The 12 Republicans are under intense pressure from hardline opponents of same-sex marriage to change their vote. But more moderate voices in the conservative religious community have endorsed the bill’s protections for religious liberty. The Church of Jesus Christ of Latter-day Saints, the National Association of Evangelicals, the Seventh-day Adventists, the Council for Christian Colleges and Universities, the Orthodox Union (a broad alliance of Orthodox Jewish groups) and the Institutional Religious Freedom Alliance (an interfaith group that mostly 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.
The bill is a compromise, and like any good compromise, it leaves both sides less than entirely happy. Both gay rights and religious liberty benefit from this bill, but not as much as either side wants. On the gay rights side, the bill does not require any state to authorize same-sex marriages within the state, but only to recognize same-sex marriages from other states. That distinction may not matter much as long as same-sex couples can go elsewhere to get married.
Regarding religious liberty, the bill does several things. Most important, it says that nothing in the bill denies or alters anyone’s right to any government benefit, status or right. These protected benefits explicitly include tax exemption, educational funding and accreditation, and government licenses, grants, contracts, loans and all the other categories that Congress could think of.
The government’s lawyer once told the Supreme Court, at the oral argument in Obergefell, that after same-sex marriage became the law of the land, tax exemption would be an issue for religious organizations that objected. In this bill, Congress rejects that threat.
Second, the bill includes a congressional finding that “diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious and philosophical premises,” and that these people “and their diverse beliefs are due proper respect.” This finding puts the Congress of the United States, with the unanimous support of Democratic senators, on record as rejecting the frequent claim that religious resistance to same-sex marriage is no different from bigoted resistance to interracial marriage.
Third, the bill says that no “nonprofit religious organization,” with a very long and broadly inclusive list of examples of such organizations, can be required to assist with solemnizing or celebrating a marriage. And no such organization can be sued for refusing to do so. This has been a smaller risk, but it is good to have that risk expressly eliminated in a federal law.
The Respect for Marriage Act is important to both sides in another way: it models compromise as the way forward. Utah led the way here, with what is now known in the rest of the country as the Utah Compromise. Utah is a very conservative state in many ways, but it has a statewide ban on discrimination with regard to sexual orientation and gender identity in both employment and housing, with express protections for religious liberty.
Hardliners on both sides denounced the Utah Compromise, and so far, they have killed all efforts to enact anything similar in other states. And they have done the same in Congress.
Conservatives in Congress have promoted bills that would provide absolute protection for religious liberty and do nothing for gay rights. Liberals in Congress have promoted bills that would add sexual orientation and gender identity to every federal anti-discrimination law, covering pretty much the whole economy, and that would include no protections for religious liberty and would actually repeal existing protections.
Neither side can pass these one-sided bills. We cannot protect traditional religious believers without also protecting gay rights — and vice versa. We can protect both sides only through compromise: only by putting protections for both sides in the same bill and passing those protections with the same vote.
Religious liberty has been caught in the crossfire of warring groups unwilling to accept the smallest gain for the other side. Religious liberty has suffered as a result. It has suffered in the extent to which it is legally protected. And it has suffered even more in its status as a fundamental civil right that all Americans should support.
Religious liberty was once recognized as a fundamental right with strong bipartisan support. Congress passed the Religious Freedom Restoration Act all but unanimously, and Bill Clinton enthusiastically signed it. That law did just what the name suggests, responding to a Supreme Court decision that had narrowed constitutional protection for religious liberty.
But much of that bipartisan support has been lost, and too many liberal and progressive Americans have become hostile to religious liberty, in large part because they came to perceive hostility to gay rights as the signature issue of American believers.
Compromise is the only way back from this impasse, and the Respect for Marriage Act is a good first compromise. Twelve courageous Republican senators have stood up to hardline conservative interest groups and made this bill possible. Their Democratic colleagues have faced less intense pressure this time around, but they too have stood up to their hardliners.
Both sides should stick to their guns on the need for compromise, and hopefully with still more Republicans, see the Respect for Marriage Act through to bipartisan passage.
Douglas Laycock is the Robert E. Scott Distinguished Professor of Law at the University of Virginia Law School and the author of the five-volume collection “Religious Liberty.”