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Tipsheet

Let's Talk About the 'Respect for Marriage Act'

J. Scott Applewhite

Allow me to begin with a disclosure that isn't necessary, but I'd like to offer it anyway: If you weren't already aware, I am gay and married.  I came out publicly seven years ago, and married my husband in 2019.  It may therefore come as no great surprise that I'm supportive of the bipartisan 'Respect for Marriage Act' that easily passed in the US Senate earlier this week.  Because I have a very personal investment in the question at hand, readers might conclude that my personal bias may be coloring my judgment on the legislation.  Perhaps so.  I'll just point out that I've opposed a number of previous, far more partisan 'LGBTQ rights' bills because they constituted overreach, and that I believed risked inviting or encouraging abuses against personal and religious conscience rights.  I do not reflexively add my seal of approval whenever Democrats stamp (an increasingly unsightly) rainbow+ flag onto a legislative parcel and send it down the conveyor belt for predictable applause and opposition.  Indeed, I'm often suspicious of Congressional Democrats and their motives on most issue sets, including this one, as my commentary and analysis routinely demonstrate.  

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But I do favor the Senate's Respect for Marriage Act.  I supported the House-passed version that emerged over the summer, with 47 House Republicans voting in the affirmative, with slightly less enthusiasm.  That dozens of GOP members voted the way they did represented a striking sea change in GOP sentiment; such an outcome would have been unthinkable just a few years ago.  The shift reflects an evolving culture that has become overwhelmingly comfortable with same-sex marriage and gay rights generally, with more than seven in ten Americans in favor of the former, per Gallup.  This number now includes a slim majority of self-identified Republican voters.  As more LGBT people have emerged from the closet, lived openly in society, and gotten married, the broader population has grown more accepting.  Visibility and familiarity have made a clear impact in changing hearts and minds.  As for the movement among Republicans, some credit is unquestionably due to former President Donald Trump, who became the first GOP presidential nominee to express support for same-sex marriage, following his 2016 victory.  Regular readers know that I'm hardly a great Trump fan, though I'm not an unhinged critic either.  His signal to the party that the era of lopsided opposition to same-sex marriage, in which the issue was something of a litmus test in GOP politics, was over.  Without his leadership in this realm, I'm not sure anywhere close to 47 House Republicans and 12 Senate Republicans would have voted the way they have on this measure. The amended legislation, which now pings back to the House for final passage, is modest in scope, reasonable in its specifics, and redundant in purpose.  Let's examine each of these points:

Modest -- The Respect for Marriage Act does not swing for the fences by requiring every state to legalize same-sex marriage if the Supreme Court's 2015 Obergefell decision were to somehow fall (more on that shortly), which could run into constitutional issues.  It instead serves as something of a 'Defense of Marriage Act' (DOMA) in reverse. As one summary put it, "if the Supreme Court overturned Obergefell and previous state prohibitions on same-sex marriage came back into effect, the Respect for Marriage Act would require states and the federal government to respect marriages conducted in places where it is legal."  This means that legally-obtained marriages would remain binding, with various benefits and responsibilities attached, even if a couple lived in a state that were to reimpose a ban on the performance of such ceremonies, in a hypothetical and far-fetched post-Obergefell world.  This framing would maintain state autonomy on the underlying policy question, while affording stability for couples who, for example, would not wish to see their existing marriage suddenly dissolved depending on where they live.  Authors of this bill could have pumped it full of poison pills, rendering it unacceptable to virtually all Republicans.  They did not do so, opting to craft a plan that provides relatively elegant, focused, and narrow protections that could attract meaningful bipartisan support.  In this, they have manifestly succeeded.  This is legislation written with somewhat rare humility, designed to actually pass, not make a point or drive a wedge.

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Reasonable -- The iteration of the bill that sailed through the House months ago included one significant drafting error or inconsistency that some opponents worried could have cracked open the door to multi-partner 'marriages.'  Why not fix this point and reconcile the language to make crystal clear that marriage shall be limited to two consenting partners?  Well, the Senate has done precisely that.  Senate negotiators also also added a number of explicit religious liberty protections for churches, houses of worship and other religious organizations.  These are improvements over the House-passed version.  Are they all-encompassing and perfect?  No.  Would I be open to additional beefed-up protections, like those offered in an amendment by Sen. Mike Lee, the lone member of the Utah Congressional delegation to oppose the bill (it's worth noting that the Mormon Church has endorsed the compromise)?  I would.  But this isn't nothing:


What we've seen, in my view, are good faith efforts to improve an already-reasonable and modest piece of legislation. The item approved by the Senate this week is several increments better than the document they originally received from the House. And Senators spent a good amount of time wrestling with the language, debating its merits, and voting on alterations. The substance and the process were better this round.  These things matter.

Redundant -- Nearly every Republican agrees that the Respect for Marriage Act is ultimately an academic exercise because the aforementioned Obergefell SCOTUS ruling isn't going anywhere.  In that famous case, the Court established a constitutional, nationwide right to marriage for same-sex couples, a far more wide-reaching precedent than anything RFMA would enforce in Obergefell's absence.  The justices' ruling is the active, current, widely-accepted law of the land.  Hundreds of thousands of same-sex couples across the country are living married lives.  Some excitable types on the Left have declared that contraception and gay marriage are suddenly in jeopardy because the Court finally overturned Roe v. Wade in this past spring's Dobbs decision (a long overdue and constitutionally correct move, as I see it).  But the Dobbs majority went out of its way to state that its reasoning was limited only to abortion, and specifically and affirmatively did not apply it to any other rights, such as the ones being highlighted by critics as under siege.  Exactly one member of the Court, Justice Clarence Thomas, evinced any appetite for revisiting precedent on questions such as contraception or same-sex marriage, in a concurring opinion.  It is the firm belief of virtually every conservative legal expert I've spoken with that this Court wouldn't even garner the requisite four justices to 'grant cert' (ie, take up a case) if hypothetically presented with a challenge to Obergefell -- let alone five justices to overturn it.  As I've noted before, SCOTUS recently expanded LGBT rights in its 2020 Bostock decision, which was authored by Justice Neil Gorsuch, a Trump appointee, joined by Chief Justice John Roberts.

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A few more notes on RFMA's redundancy: Some may ask, if it's supposedly so unnecessary, why do we need it at all?  It's a fair question.  My answer is twofold.  First, whether or not you agree with the Court's reasoning and conclusions in Obergefell, it's at least somewhat similar to Roe in that it sought to 'settle' a controversial cultural/social issue by judicially imposing a constitutional right.  Abortion was never settled in the minds of the American people, of course, whereas a far stronger and more rapid consensus has formed on same-sex marriage.  But just because the courts have 'solved' or ostensibly 'settled' an issue doesn't necessarily mean that the legislative branch should stop legislating, even if to create a democratically-enacted 'backstop,' in the very unlikely event that the new constitutional right is revised or removed by a future ruling.  Also, because people are emotional beings, and the inner workings of politics can seem inscrutable to many casual or distant observers, there are quite a few Americans who have been led to believe (by cynics and hysterics, I'd argue) that gay marriage is next on the chopping clock at the Supreme Court.  This is flat-out wrong, I think, for the reasons I've outlined, but the panic and fear in certain quarters is palpable and fervent.  The Respect For Marriage Act being signed into law would at least provide reassurance of significant continuity and stability among some who believe Obergefell's doomsday could be right around the corner, thus lowering the temperature on a hot-button social issue.  This is a healthy thing, especially if it deprives fear-mongers of a misleading talking point deployed to keep people afraid, for partisan reasons.

The biggest remaining concern with RFMA, raised by a number of elected officials, political commentators and ideological organizations with whom I often agree, deals with religious liberty.  I share this overall area of concern and I hope SCOTUS will move soon and decisively to protect the conscience and First Amendment rights of small business owners, for example, not to be forced or bullied into participating in same-sex weddings.  For years, I've stated my position that same-sex marriage should be legal in a pluralistic society -- and that pluralism also demands that people who object to such unions on religious or conscience grounds ought not be coerced into embracing or even celebrating the newly-dominant cultural norm.  'Live and let live' must flow both ways.  I don't think businesses should be able to deny goods or services to LGBT people as a matter of course, but opt-outs from serving same-sex wedding events in particular strikes me as a fair and reasonable accommodation.  Such accommodations are not comprehensively enshrined in RFMA, which some detractors say amounts to deal breaker.  I'd argue that these issues will ultimately be adjudicated by the judiciary.  

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Importantly, the relevant reality is that right now the law across the entire country is that marriage is a constitutional right for same-sex couples, under the not-going-anywhere Obergefell precedent.  Battles over conscience rights for bakers, florists, etc. on this overall subject have been raging for years, even pre-dating Obergefell.  They would continue to play out even if RFMA didn't exist.  Sorting out the appropriate balancing act is a very heavy, complex and charged task. I believe it's an unrealistic expectation to demand that a bipartisan piece of legislation like this one resolve such matters.  Just because this years-long fight on multiple fronts isn't perfectly addressed in RFMA doesn't justify opposing it, in my view, especially because the related legal skirmishes would (and will) continue regardless.  In the end, I'm not convinced by the objection that RFMA would render some Americans more susceptible to lawsuits or persecution than they were previously -- even as I believe, again, that the Supreme Court needs to handle these nagging, rights-balancing questions (hopefully by installing robust First Amendment safeguards for same-sex marriage dissenters).

The Senate vote this week was 61-36 in favor, with one Democrat (Warnock) and two Republicans (Sasse, Toomey) not voting.  As noted previously, 12 GOP Senators joined unanimous Democrats on final passage, representing a cross-section of the conference.  'Yea' votes from socially moderate-to-liberal Republicans like Susan Collins and Lisa Murkowski weren't at all surprising, but there were also rank-and-file conservatives from reddish states (Burr, Tillis, Ernst, Portman, Sullivan, Young) in the coalition, joined by conservatives from some of the most Republican states in the country (Blunt, Capito, Lummis, Romney).  With the House expected to green-light the Senate bill in the coming days and send it to President Biden's desk, I'm optimistic that the number of Republican supporters could swell beyond 47 in the lower chamber, given the upgrades to the legislation.  At least two GOP House members I've spoken with privately, who voted 'no' on the first version a few months back, tell me they're now more inclined to flip to 'yes,' as some of their substantive and process misgivings have been addressed.  

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I'll add that people who remain opposed to the bill should not be smeared as hateful bigots, which accomplishes nothing and ignores valid hesitations, even if I find those hesitations unpersuasive, on balance.  To wit, I recently spoke to one very conservative Senator who just voted against the measure who told me he thinks ripping away anyone's marriage would be "inhumane" and should never be permitted to happen.  That is not a viewpoint or a person driven by hatred. Of course, there are others who will always look for any excuse to oppose any legislation along these lines, for any number of reasons -- cynical, self-interested, and otherwise -- which is unfortunate, but a political fact of life.  I'm under no illusions that the tolerant progress society has made is universal.  But in the fairly recent past, there would be a lot more Republican in the 'automatic no' camp on Capitol Hill, but a page is being turned, and these recent vote counts reflect that.  I encourage open-minded and forward-thinking GOP members of the House of Representatives to vote in favor of the Respect For Marriage Act when presented with that opportunity very soon, thus providing a substantial conservative imprint on a fair and reasonable path forward. RFMA is not perfectly ideal in every conceivable way, and it's almost certainly duplicative.  But it's constitutional, fair, modest, and reasonable -- and therefore worthy of support.

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