Respect for Marriage Act: Why religious liberty deserves protection and my amendment will provide it

November 28, 2022

Recently, the Respect for Marriage Act (RFMA)—a bill designed to protect same-sex marriage by essentially codifying the Supreme Court’s 2015 ruling in Obergefell v. Hodges—cleared a major procedural hurdle and appears to be on a fast track to becoming law. 

Twelve Senate Republicans joined all 50 Senate Democrats to secure the super-majority needed to advance legislation in the Senate. Those voting for the bill relied on assurances from the bill’s proponents that it would codify the core tenets of Obergefell v. Hodges without undermining religious liberty.

While the tension between same-sex marriage and religious liberty might not be obvious to many, legal experts have long understood that there is a legitimate risk that, without robust protections in place, federal recognition of same-sex marriage could—read against the backdrop of various federal statutes and the way they have been interpreted by the Supreme Court—inflict harm on those who, for reasons rooted in sincerely held religious belief or moral conviction, do not embrace same-sex marriage. 

One potential manifestation of this risk was highlighted in a now-famous exchange between Justice Alito and then-Solicitor General Donald Verrilli at the time Obergefell was argued in 2015, in which Verrilli correctly (and repeatedly) acknowledged that, once same-sex marriage is recognized nationwide, many colleges, universities, and other non-profits could lose their tax-exempt status based on their refusal, rooted in religious belief, to recognize same-sex marriage.

With many senators (particularly Republicans) aware of this and other concerns, the RFMA’s leading proponents amended the bill by adding protections for religious service attendance and the solemnization of marriage. But those protections are inadequate to address many of the gravest risks posed by this bill, particularly those threatening the tax-exempt status of religious non-profits. 

Fortunately, there’s still time to amend the bill, and I have proposed an amendment with Senators Braun, Crapo, Cruz, Graham, Hawley, Johnson, Marshall, Paul, Risch, Sasse, Scott of Florida, Thune, and Wicker that would essentially eliminate the threats the bill currently poses to religious freedom.

My simple, common-sense amendment would prohibit the federal government from retaliating against any person or group for adhering to sincerely held religious beliefs and moral convictions about marriage. 

In no way would my amendment impair the RFMA's ability to perform its simple, stated purpose: to protect same-sex marriage against an extremely unlikely scenario in which the Supreme Court one day decides to overturn Obergefell.  My amendment adds protections without creating the type of zero-sum dynamic—a virtual tug-of-war between same-sex marriage and religious freedom—that would surely follow from the bill’s passage in its current form.

Under the RFMA’s current language, many religious schools, faith-based organizations, and other non-profit entities adhering to traditional views of marriage would be at risk of losing tax-exempt status and access to a wide range of federal programs. Many small businesses would also be affected. For example, wedding vendors (including kosher caterers) would be subjected to endless lawsuits and harassment based solely on their beliefs. 

Without my amendment, the RFMA would only exacerbate and nationalize the discriminatory policies already in place in Illinois, Massachusetts, California, and the District of Columbia, where religious adoption agencies are essentially shut down unless they recognize same-sex marriage. It would threaten the work of the U.S. Conference of Catholic Bishops to provide foster care to unaccompanied alien children and place religious adoption agencies at risk of shutting down. 

I have yet to hear from a single member of Congress — on either side of this legislation — arguing that the government should discriminate against faith-based institutions and individuals. Quite to the contrary, they argue that this bill would have no such effect, and that the government should never punish religious belief.

Consequently, my amendment should be a no-brainer.

Congress can recognize the ongoing validity of same-sex marriage without trampling on the First Amendment rights of those who believe in traditional marriage. Unfortunately, the current language of the RFMA does not strike that balance. Instead, it elevates the rights of one group at the expense of another. 

The religious protections in my amendment offer the best path toward achieving the civility necessary for a pluralistic society to thrive. Therefore, I'm hopeful that my friends and colleagues can come together, united by a shared commitment to tolerance and mutual respect, to support my amendment. 

There’s no reason Congress can’t protect same-sex marriage without sacrificing religious liberty. My amendment, which would allow the RFMA to accommodate both interests, should be adopted immediately. I urge my colleagues to oppose the RFMA unless or until it has been.

Op-Ed originally published by Fox News