AMAC Exclusive – David P. Deavel

The twelve Republican Senators and sometimes conservative figures such as David French say it’s now safe. But they are wrong. The so-called Respect for Marriage Act, now having passed the Senate and likely to pass the House sometime this week, is a bill that will provide an opportunity for potential lawsuits and legal penalties for religious and other Americans who do not think that two men or two women can contract a real marriage, whatever the government has decided.

That is not all, however. Ever since the issue started heating up almost two decades ago, those who opposed “same-sex marriage” warned that such a redefinition would certainly not be the end. While many of those who approved it knew this, they largely kept this aspect of the “battle for equality” in the shadows and often attacked those who spoke about how this change could result in government recognition of polygamous, polyamorous, incestuous, and who knows what other kinds of relationships as marriages.   

On November 29 the Senate passed Act 62-37. The bill, which repeals the 1996 Defense of Marriage Act recognizing only the union of one man and woman as a marriage, would also require those “acting under color of state law” to recognize same-sex marriages, allow for a right to sue for those who do not do so and command the federal government to recognize marriages as defined by one or more states.    

Republican Senators Roy Blunt of Missouri, Richard Burr of North Carolina, Shelley Capito of West Virginia, Susan Collins of Maine, Cynthia Lummis of Wyoming, Rob Portman of Ohio, Mitt Romney of Utah, Dan Sullivan of Alaska, Thom Tillis of North Carolina, Joni Ernst of Iowa, Lisa Murkowski of Alaska, and Todd Young of Indiana all ended up voting for it while no Democrats voted against.

On what basis could these GOP Senators justify such a vote given the obvious danger to churches and religious organizations? Senator Mike Lee had spoken out vociferously about the danger this bill posed and had himself offered an amendment that would have prevented the federal government from taking any retaliatory action against individuals who speak or act on the basis of a “sincerely held religious belief, or moral conviction” that marriage should be recognized as either the union of one man and one woman or what federal law states it is. Lee’s amendment clarified that such retaliation included penalties or the taking away of tax-exempt status by the IRS as well as the withholding or removal of any federal grants, loans, employment, or benefits of any kind on the basis of such beliefs.

Despite the clarity of this amendment, it failed 49-48 earlier in the week in the Senate. While Texas GOP Representative Chip Roy has introduced an identical amendment in the House, what passed the Senate was instead an amendment authored by Wisconsin Democrat Tammy Baldwin that does not identify how the federal government may not punish those who hold sincere religious or moral convictions. It does provide a patina of support for religious freedom by asserting that: “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.”

Writers such as David French and the Church of Latter-Day Saints (the Mormons) supported the passage of the act on the assumption that with Baldwin’s Amendment religious liberty claims would be strong. But, as ADF’s Kristen Waggoner wrote in reply to French’s contention that very few private organizations would really be forced to provide such services, accommodations, and so on lest they create a civil claim or cause for action, that phrase in Section 3 about “[n]o person acting under color of State law” has very often been interpreted to mean private organizations that work closely with the government. Not only have private adoption and foster agencies been deemed as acting “under color of state law,” but so have: “state high school athletic associations, bail bondsmen, state bar associations, cooperative extensions, redevelopment corporations, drug testing companies, private universities, foundations, housing contractors, housing providers, insurance companies, hospitals, mental health facilities, non-profit corporations, physicians, private security officers, racing associations, prison chaplains, prison ministries, and towing companies, among others.”

The danger is obvious. Simply saying that “entities whose principal purpose is the study, practice, or advancement of religion,” as Baldwin’s amendment puts it, will be under no obligation doesn’t cut it when all sorts of organizations run by Christians, Jews, and Muslims would be vulnerable given the broad array of organizations. Think about all the Christian colleges and universities that take federal funding and work with various federal agencies. As Waggoner observes, the very ambiguity of what any given court will rule is acting “under color of state law” means that it will be easy to punish such dissenting organizations by subjecting them to expensive litigation either by individuals or the government if this passes. Whether a given group holding to man-woman marriage wins or not, the ruinous fees from this lawfare will be devastating. There is a reason that not only religious liberty groups such as ADF but also many Evangelical groups and the U. S. Catholic Bishops Conference were imploring the Senate to reverse course before passage.

But this danger to religious organizations is not the only thing. While the current language of the bill specifies that this demand to recognize any union recognized by one or more states applies to only two people in a union and Baldwin’s amendment explicitly rules out polygamous unions, it is not clear that this is much of a barrier either to more radical redefinitions of marriage.

Senator Ted Cruz proposed an amendment that would have specifically ruled out not only polygamous marriages but also incestuous and child marriages—but it was defeated. As for the supposed defense against forced recognition of polygamous unions, the Heritage Foundation’s Roger Severino noted that this isn’t clear either. While the current terms “cover unions where three or more persons are married to each other as one family unit,” he observes that “the bill leaves open the possibility that one person can be in multiple two-person marriages at the same time, which would trigger federal recognition if a state legally were to recognize such consensual, bigamous unions as separate family units.”

Given that in Massachusetts, which pioneered the recognition of same-sex unions as marriages, there have already been two cities that have recognized polyamorous unions, and in New York, a civil court judge has ruled that polyamorous relationships must be recognized as equal to two-person relationships, it is not hard to see that Severino’s hypothesis might very well be taken up.

While we can pray that the House takes up Representative Roy’s amendment, I think it is a long shot. If the Senate, where Republicans had more favorable numbers, could not figure out a way to at least protect religious liberty and ensure that further redefinitions of marriage are not enacted, it is hard to see how this will happen in the current House.

This bill is quite likely, if passed, to display the kind of severely distorting effects on society that those who objected to redefining marriage in the first place warned about. The ideas that marriage is constituted solely by an amorphous “love” and that “love is love” have no limiting principle. And, as we have seen, even the limits present are easily permeable with some clever lawyers. For Jews and Christians who believe that marriage is a divinely ordered institution that highlights the remarkable image of God, male and female, this is a deeply troubling barrier to finding our true humanity. For Muslims who believe marriage is a sacred bond, this will be troubling too. And for Christians, for whom marriage is a divine sign or sacrament representing Christ’s relationship with the Church, this will present another veil over the truth of salvation that we preach. 

And, as President Obama used to talk about “freedom of worship” as if it were all about private and public ceremonies rather than living out one’s faith in “freedom of religion,” we are likely to see that the solid protections for religious groups will likely be limited to not being required to perform marriage ceremonies. To keep their educational, charitable, and service organizations running according to their beliefs is going to require a lot of clever lawyers and a lot of fortitude.

Pray that the Roy Amendment somehow makes it in. And get ready to do a lot more praying and lawyering if the bill does pass the House.

David P. Deavel teaches at the University of St. Thomas in Houston, Texas, and is a Senior Contributor at The Imaginative Conservative.