December 2, 2022
Churches, people of faith, and others often join across theological and similar divides to speak up for religious freedom. Currently, however, there is some disagreement among these groups and individuals about a particular piece of federal legislation with religious freedom implications: the Respect for Marriage Act. The Act was passed by the Senate and is expected to pass the House soon and be signed by President Joe Biden.
What is the Respect for Marriage Act?
The bill would require state and federal officials to recognize same-sex marriages and honor claims based on a same-sex marriage (e.g., inheritance by a spouse). In effect, it would align federal law with the policy already in place under the U.S. Supreme Court’s 2015 decision mandating same-sex marriage. It also means that when government works with private groups or individuals (e.g., through grants to provide social services) these groups must follow the national marriage policy laid out in the act.
The bill also has provisions related to religious freedom (described in more detail below). For instance, the Act includes a congressional finding of fact that says, “diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises.” The Act also disavows any possible impacts on constitutional or statutory protections of religious freedom, and with a recent amendment, prevents the government from requiring religious organizations covered by the law from being asked to perform or celebrate same-sex marriages.
What implications does it have for religious freedom?
The act does not specifically create duties for religious groups per se but could have implications for these groups and people of faith. However, prior to the U.S. Senate reaching consensus around amendments to the legislation addressing religious freedom implications, the bill raised potential concerns for many religious groups and individuals.
Many religions teach that marriage is the union of a husband and wife and that because of that religious conviction, those churches, their leaders, and their members cannot in good conscience do some things, such as solemnize same-sex marriages, facilitate same-sex weddings, or endorse same-sex marriages in selection of personnel or provision of services.
Implication One: One potential religious freedom implication comes when a religious group or person of faith with these beliefs about marriage provides social services (like counseling, child placement or education) and receives direct (e.g. through grants) or indirect (e.g. through tax exemption) authority from the federal government to do so. Then, if that group or individual acts on its beliefs about marriage that are at odds with the new federal definition, their actions could be the grounds for a legal challenge.
Implication Two: Another potential implication could come indirectly from the status of same-sex marriage as a preferred policy in the country, which might be conceivably be used as evidence that religious groups and people of faith who follow different beliefs could be denied recognition in federal law such as tax exemption or eligibility for grants. This possibility was recognized in the oral argument in the same-sex marriage case. It is more speculative than the first.
How does the act address these concerns?
The language of the consensus amendment to the bill addressing religious freedom reads as follows:
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.
Consistent with the First Amendment to the Constitution, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action.
The first portion specifies that current protections of religious freedom in federal law, like the Free Exercise Clause of the First Amendment or the Religious Freedom Restoration Act are not affected by the Respect for Marriage Act. This is meant to address implication two noted above.
The next portion specifically exempts from liability a long list of religious nonprofits from providing “services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.” So, the covered nonprofits would not have to solemnize (perform) or provide their facilities or services for a wedding and presumably a reception or something similar.
So, are the protections of religious freedom “important” or “anemic?”
Who is right? The lawyerly answer is probably right: “It depends.”
It is important for Congress to rule out certain implications of the law so that religious groups can avoid being sued. Even when court decisions make it likely that religious defendants will prevail, it is still financially and emotionally draining to defend against a lawsuit.
The protection from liability related to weddings responds to what legal scholar Douglas Laycock calls “a smaller risk,” but as Laycock explains, “It is good to have that risk expressly eliminated in a federal law.”
Of course, there are some conflicts the law does not address. A religious school or social service provider receiving federal funding like financial assistance or contracting with the state to provide help to people in need could still run into challenges if they make distinctions consistent with their beliefs between same-sex marriages and other marriages in their operations. This was the scenario in the recent Fulton v. City of Philadelphia case. The Supreme Court decision allowed the Catholic charity to continue to operate consistent with church teachings, but it is not yet clear how that ruling would apply in other situations.
Well-known religious groups who have a clear institutional structure may be better protected by the types of exemptions provided by the Respect for Marriage Act and current Supreme Court precedent. Individuals whose faith traditions are less likely to involve working within formal institutional structures, or whose beliefs lead them to see faith as influencing all aspects of their public lives, may be more sensitive to the gaps in the act’s religious protections. An example may be a business owner whose business is not directly religious, but who wants to act on religious principles in conducting that business.
Are there other considerations that could explain support for the act by some religious freedom advocates?
In addition to the substance of the protections, there are procedural considerations that are relevant to understanding the importance of the bill. Even if all the potential religious freedom implications of the act are not addressed, the process of seeking to avoid at least some conflicts can be a model of a productive way forward for future state and federal legislation.
Political and social context are also important. As a matter of reality, religious organizations and people of faith may not be able to secure all possible protections they might desire at present. In that scenario, the Respect for Marriage Act’s attempt to address religious freedom might reflect all that is currently possible.
The adequacy of the protections and of the procedural precedent set by the act will become clearer over time. Since most religious freedom conflicts arise at the state level, it will be critical for states to take lessons from the act on how to achieve continuing progress for religious freedom in a divided society.
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