The Respect for Marriage Act Is Not All As It Appears

Senate Republicans earlier this month provided enough votes to advance the Respect for Marriage Act, which would ensure federal and state recognition of legal same-sex marriages. But does it really?

Aaron Blake of the Washington Post explains, No big shift for GOP on same-sex marriage, despite impact of Roe on 2022:

Twelve GOP senators helped the bill clear the 60-vote threshold by two votes. That follows on the 47 House Republicans who voted for the measure this summer. Once the Senate officially passes the bill, its slightly different version will go back to the House before President Biden signs it.

That the GOP helped pass the bill could insulate the party from criticism that it stands in the way of a policy supported by 7 in 10 Americans. And it takes off the table some of the most troubling political possibilities were the court also to overturn the right to same-sex marriage, as Democrats have warned it might. (The bill is essentially intended to guard against that possibility; the court already legalized same-sex marriage nationwide.)

But this bill was more modest than many people realize. And the percentage of GOP senators who voted against it — around three-quarters — was similar to the proportion of House Republicans who did so four months ago. Even this summer, No. 2 Senate GOP leader John Thune (R-S.D.) indicated that there were probably were enough votes to pass it in the Senate. And the bill was delayed till after the election in hopes it could garner more GOP support. But the events of the intervening months apparently didn’t sway enough Republicans to get it very far past 60 votes. Time — and an election — did not expand GOP support in the Senate.

While the bill has often been characterized as codifying same-sex marriage into law, it actually doesn’t go as far as the court’s 2015 decision in Obergefell v. Hodges. While that decision forced states to issue same-sex marriage certificates, this bill only requires the federal government and states to recognize legal same-sex marriages. Were Obergefell to be overturned, a state could still ban same-sex marriage, but it would have to recognize marriages from other states, as would the federal government. (The bill provides similar protections for interracial marriage.)

Some same-sex marriage proponents argued that this was insufficient and wouldn’t go far enough to truly protect LGBTQ rights. But the bill was aimed at passing constitutional muster and surviving potential court challenges, given that the Supreme Court has repeatedly ruled that the federal government can’t “commandeer” states to pass laws like ones recognizing same-sex marriage.

So, basically, lawmakers weren’t even voting to compel every state to legalize same-sex marriage. They were merely asked to codify state and federal recognition of a right that the Supreme Court has ruled already exists.

Republicans had walked a fine line on this issue; many of them did not emphasize their actual positions on same-sex marriage. Some argued that the bill contained insufficient religious-liberty protections, although an agreement was recently reached to expand them. Largely, their main line of argument was that the bill was unnecessary, because it was implausible that the Supreme Court would do with same-sex marriage what it did with abortion rights. [Riiight.]

Justice Samuel A. Alito Jr. in his opinion in Dobbs v. Jackson Women’s Health Organization and Justice Brett M. Kavanaugh in his concurrence took great care to say that the decision’s reasoning did not endanger the court’s previous rulings legalizing contraception, interracial marriage and same-sex marriage. (Justice Clarence Thomas, however, undercut that by saying the contraception and same-sex marriage decisions should, indeed, be revisited).

This allowed Republicans to some degree to punt on the substance of the Respect for Marriage Act — and instead to say they were voting against it on technical grounds.

But for a party that has for decades derided “activist judges” and “legislating from the bench,” this was an opportunity to put Congress’s stamp of approval on this right. And while it may, indeed, be unlikely that the court will ever overturn same-sex marriage, the idea is hardly ridiculous, given what transpired this summer with a decades-older right with more precedent behind it.

Nor is there any real question about where public perception lands on same-sex marriage; consensus on this issue has built faster than arguably on any other major issue over the past quarter-century, with no signs that it will stop building.

The GOP’s approach has long been to just stop talking about it, and they got an assist in 2015 when the Supreme Court effectively took the issue off the table. The thinking now is apparently that they gave the Respect for Marriage Act enough votes to ensure the issue will soon leave the spotlight without requiring them to fully embrace same-sex marriage — and that might ultimately be a safe political play.

But the vast majority of Republicans in Congress did just cast a vote at odds with the American public. Not only do 7 in 10 Americans support same-sex marriage, but past polling suggests that support for the substance of the Respect for Marriage Act might even be slightly higher. A Quinnipiac University poll shortly after the 2015 Obergefell decision showed that, at the time, Americans opposed allowing states to prohibit same-sex marriage by 13 points. Yet they supported requiring states to recognize legal same-sex marriages from other states by an even larger margin: 21 points.

What’s more, however much Republicans offer assurances that the Respect for Marriage Act was unnecessary, polls conducted in the immediate aftermath of the court’s overturning Roe v. Wade suggested they were out of step with the public on this: Majorities were indeed concerned that same-sex marriage would be next, or felt that it was likely that would happen — 56 percent in each case.

This was an opportunity to put those concerns to rest and align with a strong majority of the public. But even those who suggested they might get to “yes” or that they supported the right to same-sex marriage — like Sens. Ron Johnson (R-Wis.) and Tommy Tuberville (R-Ala.), respectively — were not moved to vote that way, even after the events of the 2022 election. The bill was passed in large part thanks to moderates and retiring senators, who delivered a majority of the 12 Republican “yes” votes.

Jonathan Larson at Salon (h/t above photo) adds, Respect for Marriage Act is a tradeoff, but Democrats may not know what they’re trading (excerpt):

The Senate is expected to begin debate on the Respect for Marriage Act (RFMA) after the Thanksgiving holiday, but there’s no sign Democrats are aware that the bill involves a tradeoff between codifying same-sex marriage and perpetuating other forms of anti-LGBTQ discrimination.

An amendment added to the bill this week reaffirms and adds protections to the Religious Freedom Restoration Act (RFRA), which members of Congress and the media routinely refer to merely as protecting religious liberties but in fact has been used in court against LGBTQ and other communities.

As recently as two months ago, a judge sided with a company arguing that RFRA permitted excluding HIV-prevention drugs from its employee health plan to avoid facilitating “homosexual behavior.”

At least one senator told The Young Turks he wasn’t aware of that ruling. And the amendment’s sponsors — Sens. Tammy Baldwin, D-Wis., and Kyrsten Sinema, D-Ariz., the only open LGBTQ members of the Senate — did not respond to requests for comment about RFRA and the recent ruling.

But a dozen Republicans thought the amendment was worth backing same-sex marriage. Democrats needed at least ten to thwart a filibuster. They got those votes by adding the amendment.

“If that amendment is attached to the bill, I’ll vote for it,” Sen. Mitt Romney, R-Utah, said. After the amendment was added, his church, the Mormons, publicly endorsed the bill, which passed a procedural hurdle with a 62-37 vote.

The House would still have to approve the amended bill before Pres. Joe Biden can sign it, which he has said he will.

All of which raises the question — are Democrats aware of what those Senate Republicans think they’re getting in the amendment? Or is the amendment toothless and Romney and others are just using it as political cover to justify joining the 21st century?

A number of Christian conservatives, such as Sen. Mike Lee, R-Utah, Romney’s fellow Utahn, call the RFRA amendment “lip service.” And in one respect, that’s accurate; the amendment includes rhetorical language. It says that all views of marriage — implicitly including religious opposition — deserve respect.

But its bolstering of RFRA has a more practical impact. Passed in 1993 — also with bipartisan support — RFRA was a response to the firing of two Native Americans for ritual peyote use. But since then, it has become an important legal weapon in the arsenal of the Christian right.

RFRA was sponsored by then-Rep. Chuck Schumer, D-NY, He’s now the Senate majority leader, but it’s not clear whether Senate Democrats today know how RFRA has been used since then, even though virtually the entire House Democratic Caucus last year backed a bill to rein in RFRA. (Schumer’s office did not respond to a request for comment.)

The Human Rights Campaign says RFRA has been “distort[ed]… into a blank check to discriminate.” And according to the Freedom from Religion Foundation (FFRF), RFRA and state versions of it “create a legal loophole for anyone who wishes to discriminate in the name of religion, allowing individuals and corporations to be free from following the laws everyone else must follow if they claim it would “burden” their religion.”

RFRA, the foundation says, was the basis for the Hobby Lobby ruling, which let corporate owners impose their religious beliefs on their employers by limiting staff healthcare plans to whatever care the owner’s religion endorses.

When then-Gov. Mike Pence, R-Ind., signed a state RFRA into law, LGBTQ organizations and celebrity allies went public with powerful statements in opposition. “[C]ivil rights groups and pro-equality businesses are waking up and realizing the dangers of these laws,” the FFRF concluded.

Those dangers arise from the theoretically infinite dimensions that religious freedom can assume.

Just two months ago, U.S. District Court Judge Reed O’Connor ruled that a Texas company called Braidwood Management could rely on RFRA to drop HIV-prevention drugs from its healthcare plan. And the scope of the case extended far beyond just the LGBTQ community.

The reason Braidwood could deny coverage — which O’Connor upheld with his ruling — was that paying for a healthcare plan that covers HIV-prevention drugs “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.”

In other words, RFRA was used to legalize discrimination not just against LGBTQ people, but also against people suffering from drug addiction, anyone having sex outside marriage, and anyone who wanted HIV-prevention medication for any reason.

At least one backer of RFMA, Sen. Bernie Sanders, I-Vt, said he was unaware of the RFRA ruling. When asked on Thursday whether he knew about the RFRA ruling, Sanders told The Young Turks, “I did not, honestly, I did not see that. Let me find out more about it. You’re telling me something new.”

And the Texas ruling isn’t the only instance of RFRA being used for exactly the opposite of its intended purpose.

RFRA has also been used to support legal claims that religious nonprofits, and then any nonprofits, and then for-profit companies should be able to exclude birth-control from their healthcare plans if the owner can cite a religious reason for doing so.

A Republican administration could use RFRA — as Pres. Donald Trump did — to justify letting a federally funded foster-care agency refuse to place kids with non-Christian families.

[K]entucky’s RFRA was used as the basis for an August judicial ruling that a professional wedding photographer could advertise that she discriminates against same-sex couples.

Sanders’ office has yet to respond to follow-up questions, but even though he voted for RFRA when he was in the House in 1993, there’s nothing to suggest he’s the only senator unaware of how RFRA has been used by the right. Neither party has raised RFRA’s history in the little debate Congress has had on RFMA so far — on the floor or on camera.

Which might mean each side is gambling — knowingly or otherwise — that they’re getting more out of the amended bill than the other side is, and neither wants to tip off the other.

Lee and others on the religious right seem sure they’re losing out. Alliance Defending Freedom President Kristen Waggoner reportedly said, “[T]his bill will be used by officials and activists to punish and ruin those who do not share the government’s view on marriage.”

But others on the right have suggested it’s essentially a wash, zero-sum for both sides: The underlying bill merely enshrines in the law what the Supreme Court decided in Obergefell v. Hodges and the amendment merely enshrines a pre-existing law.

“Advocates of the same-sex marriage bill can arguably claim their bill maintains a status quo under which religious liberty is threatened,” as National Review Washington Correspondent John McCormack wrote.

On the other side, even opponents of RFRA seem to think the amended bill is benign at worst.

HRC is supporting the Senate bill as amended and declined to comment on the amendment to TYT. FFRF Co-President and Co-Founder Annie Laurie Gaylor said in a statement to TYT, “The Respect for Marriage Act is a crucial bill intended to move America forward.”

Gaylor did, however, take issue with RFRA’s role in the new bill, saying, “We would, of course, have preferred that the bill include a provision that RFRA does not apply, as was the case with the Equality Act. Recent Supreme Court decisions allow RFRA to be used to enshrine discrimination via a religious exemption.”

For that reason, Gaylor said, “Congress needs to act and pass the Do No Harm Act, which clarifies how RFRA can be used and how it cannot. An even better solution would be to get rid of RFRA altogether, which has proven to be unnecessary and harmful.”

If both sides are gambling they’re getting the better end of the tradeoff here, it’s worth looking at the track record. As even the right recognizes, they’ve been losing the cultural battle over same-sex marriage.

But the Christian right may succeed in undermining the legal force of those marriages if it can continue expanding the concept of religious liberty to legalize discrimination against the LGBTQ community. And the Christian right has a substantive track record of getting Democrats to endorse religious endeavors that appear anodyne but are weaponized politically.