Washington DC-In anticipation of the expected Senate vote on the final adoption of the Respect for Marriage ActDouglas Laycock, a professor at the University of Virginia School of Law and an authority on religious freedom issues, wrote a column in support of the religious freedom protections included in the bill.
US Senators Tammy Baldwin (D-WI) and Susan Collins (R-ME) were lead the push enshrine marriage equality in federal law, and they recently introduced an amendment with Senators Rob Portman (R-OH), Kyrsten Sinema (D-AZ) and Thom Tillis (R-NC) to add protections for religious freedoms. Professor Laycock is one of a group of religious organizations and constitutional scholars who have expressed support for their amendment.
The Respect for Marriage Act shows that compromise is the way
The bill is a compromise and, like any good compromise, it leaves both parties less than entirely satisfied. But it also benefits both parties while protecting religious freedom.
By: Douglas Laycock, Robert E. Scott, professor emeritus of law at the University of Virginia School of Law and author of the five-volume “Religious Liberty” collection.
Click on HERE read the column online
Last week, the Senate moved the Respect for Marriage Act forward. The 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 states that for purposes of federal law, marriage is only between a man and a woman. This law has been unconstitutional and unenforceable since the Supreme Court’s 2015 decision in Obergefell v. Hodges, who found a constitutional right to same-sex marriage.
Proponents of same-sex marriage want the old law repealed, just in case the court ever strikes down Obergefell. The new bill states that for all purposes of federal law, the government will recognize any marriage between two people as valid in the state where the couple was married.
The Defense of Marriage Act also states that no state is required to recognize a same-sex marriage from another state. This too would be repealed; the new bill says exactly the opposite. No state may refuse to recognize a sister state marriage because of the sex (or race, ethnicity or national origin) of the married spouses.
The bill also contains explicit provisions to protect religious freedom.
Twelve Republicans, including Utah Senator Mitt Romney, joined 50 Democrats in breaking the filibuster and opening debate on the bill. They will have to start over, with at least 60 votes, to end this debate and vote on the bill.
The 12 Republicans are under intense pressure from diehard opponents of same-sex marriage to change their vote. But more moderate voices in the conservative religious community endorsed the bill’s protections for religious freedom. The Church of Jesus Christ of Latter-day Saints, the National Association of Evangelicals, Seventh-day Adventists, the Council of Christian Colleges and Universities, the Orthodox Union (a broad alliance of Orthodox Jewish groups), and the Institutional Alliance for Religious Freedom (an interfaith group that works primarily to secure equal government funding for religious social service providers) have all written to key senators endorsing the bill’s protections for religious freedom.
The bill is a compromise and, like any good compromise, it leaves both parties less than entirely satisfied. Gay rights and religious freedom benefit from this bill, but not as much as either side would like. On the gay rights side, the bill does not require any state to allow same-sex marriages within the state, only to recognize same-sex marriages from other states. This distinction may not matter much as long as same-sex couples can go elsewhere to get married.
With respect to religious freedom, the bill does several things. More importantly, he says 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, as well as government licensing, grants, contracts, loans, and every other category Congress could think of.
The government lawyer once told the Supreme Court during the oral argument in Obergefell that after same-sex marriage became the law of the land, tax exemption would be a problem for religious organizations that entered it. would oppose. In this bill, Congress rejects that threat.
Second, the bill includes a finding by Congress that “diverse beliefs about the role of sex in marriage are held by reasonable and sincere persons on the basis of decent and honorable religious and philosophical premises,” and that such persons “and their various beliefs should be duly respected. .” This finding confirms that the United States Congress, with the unanimous support of Democratic senators, rejects the frequent assertion that religious resistance to same-sex marriage is no different from sectarian resistance to interracial marriage.
Third, the bill states that no “religious non-profit organization” with a very long and largely exhaustive list of examples of such organizations, may be required to assist in solemnizing or solemnizing a marriage. And no such organization can be sued for refusing to do so. It was a lesser risk, but it is good that this risk is expressly eliminated in a federal law.
The Respect for Marriage Act is important to both parties 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 prohibits statewide discrimination regarding sexual orientation and gender identity in employment and housing, with express protections for religious freedom.
Hardliners on both sides have denounced Utah’s compromise, and so far have killed all efforts to enact something similar in other states. And they did the same in Congress.
Conservatives in Congress have promoted bills that would provide absolute protections for religious freedom and do nothing for gay rights. Liberals in Congress have promoted bills that would add sexual orientation and gender identity to all federal anti-discrimination laws, covering roughly the entire economy, and which would include no protections for religious freedom and would effectively abrogate 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 only protect both sides through compromise: only by enshrining protections for both sides in the same bill and passing those protections with the same vote.
Religious freedom has been caught in the crossfire of warring groups unwilling to accept any gain for the other side. Religious freedom suffered. He has suffered insofar as he is legally protected. And it suffered even more from its status as a basic civil right that all Americans should support.
Religious freedom was once recognized as a fundamental right with strong bipartisan support. Congress passed the Religious Freedom Restoration Act almost unanimously, and Bill Clinton enthusiastically signed it. This law did exactly what its name suggests, responding to a Supreme Court decision that had narrowed the constitutional protection of religious freedom.
But much of that bipartisan support has been lost, and too many liberal and progressive Americans have become hostile to religious freedom, largely because they have come to view hostility to gay rights as the problem. signature of American believers.
Compromise is the only way out of this impasse, and the Respect for Marriage Act is a good first compromise. Twelve brave Republican senators stood up to hardline conservative interest groups and made this bill possible. Their fellow Democrats faced less intense pressure this time around, but they too stood up to their toughs.
Both sides should stick to their guns on the need for compromise and hopefully, with even more Republicans, see the Respect for Marriage Act through to bipartisan passage.