Amended Respect for Marriage Act Still Threatens People of Faith

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On Monday, Senate Majority Leader Chuck Schumer took the final steps to bring H.R. 8404, the grossly misnamed “Respect for Marriage Act,” to a vote in the Senate tomorrow. Just like in the U.S. House, Democrats refused to hold a public hearing where the bill would be discussed and scrutinized, thus denying the American people the opportunity to learn about the very real problems with the bill, particularly its disastrous effect on religious freedom.

The religious liberty concerns are what motivated more than two thousand church and ministry leaders from across the country to sign a letter addressed to senators expressing strong opposition to the bill.  Unfortunately, an amendment drafted by Sens. Tammy Baldwin and Susan Collins that purports to address the concerns merely offers superfluous language claiming that the Respect for Marriage Act would not alter existing religious liberty protections available under the U.S. Constitution or federal law. In other words, it pays lip service to the fact that Congress can’t pass laws that violate the First Amendment while completely ignoring the most critical ways the bill threatens basic religious freedom.

Since the Obergefell decision, we have seen a relentless stream of attacks against people of faith who hold what the U.S. Supreme Court called the “decent and honorable” belief that marriage is between one man and one woman. Such people of faith include small business owners like Colorado cake artist Jack Phillips—now facing his third lawsuit—and religious social service organizations like New Hope Family Services, who have weathered aggressive attempts to punish or shut them down simply for adhering to their sincerely-held beliefs.

With its sweeping language that creates new and broad enforcement mechanisms, the Respect for Marriage Act will undoubtedly lead to increased federal action and litigation against religious individuals and organizations. While one might think that the First Amendment is an absolute shield against such vexatious litigation, courts don’t always agree. We saw this in the case of Colorado graphic artist Lorie Smith, whose case is currently at the Supreme Court after a federal appellate court ruled that, even though Lorie’s speech is protected by the First Amendment, the state can force her to design and publish custom websites promoting messages that violate her religious beliefs. And even if courts ultimately do uphold the First Amendment, there’s still the enormous personal cost of the litigation itself.

The Respect for Marriage Act goes well beyond the scope of Obergefell, empowering the government and activist organizations to violate the constitutional freedoms of millions of Americans to speak and live according to their faith. If today’s existing conscience protections are not adequately protecting religious Americans now, it’s nonsensical to believe they would afford protection under a more expansive enforcement regime as designed in the bill.

The truth is that the Baldwin-Collins amendment does nothing to meaningfully address the serious religious liberty issues with the bill. In contrast, Sen. Mike Lee also drafted an amendment, one that would have included robust, specific, and commonsense religious liberty protections to ensure that the federal government could not use the Respect for Marriage Act to cause harm to those practicing their faith. This alternative was specifically tailored to address the most pressing problems with the underlying bill—yet Democrats are likely to block it from consideration on the Senate floor.

If proponents of this bill truly cared about protecting religious liberty, they would have moved forward with the Lee Amendment or something very similar. To those worried about the future of their religious freedom if this bill is passed, the adopted amendment is further proof that supporters of this bill are dismissive of valid concerns. And those going along with the “compromise” language are likely trying to give the appearance of doing something significant without actually doing so.

While the Respect for Marriage Act does nothing to change the status of, or benefits afforded to, same-sex marriage following Obergefell, it does much to endanger people of faith. It should be defeated, especially if amendments to it are hollow window dressing. We implore senators to take the time to listen to the issues being raised by the myriad of leaders of congregations and religious ministries who are instrumental in caring for the most vulnerable among us. Support people of faith--just as they have generously supported their communities--by ensuring they can continue to genuinely live according to their sincerely-held, decent, and honorable beliefs. 

Gregory S. Baylor is senior counsel with Alliance Defending Freedom @ADFLegal