The Democrats’ hurried attempt to nationalize same-sex and interracial marriage has now left the First Amendment on the cutting room floor. It’s a conflict that could see religious schools, churches, and other institutions punished by the government for their failure to toe the Democrat line. Putting religious institutions at risk is a feature and not a bug of the bill.
The “Respect for Marriage Act” repeals the Clinton-era Defense of Marriage Act (DOMA) and nationalizes gay and interracial marriage — which are, of course, legal in every state of the union. Same-sex nuptials were upheld by the Obergefell Supreme Court decision, and laws against interracial marriage were long ago cast out by states and enshrined in the Loving Supreme Court decision in 1967.
Democrats seized upon codifying same-sex and interracial marriage when Supreme Court Justice Clarence Thomas noted in his concurrence in the Dobbs abortion decision, which remanded abortion decisions to the states, that activist courts in the past had wrongly used “substantive due process” to magic up other issues as well.
In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” we have a duty to “correct the error” established in those precedents.
After mischaracterizing the Dobbs decision in order to inflame voters in the 2022 elections, Democrats assumed the worst and teed up this bill.
In November, some senators, seeing that the proposed new law would punish religious organizations if they didn’t hire trans teachers, reconsider their religious values for adoptions, or support interspecies and polygamous marriages, offered an amendment to the bill to prevent that.
The bipartisan amendment … ensures nonprofit religious organizations will not be required to provide services, facilities or goods for the celebration of a same-sex marriage, and protects religious liberty and conscience protections available under the Constitution and federal law, including the Religious Freedom Restoration Act. It also makes clear the bill does not authorize the federal government to recognize polygamous marriage and safeguards any benefit or status — such as tax-exemptions, grants, contracts or educational funding — of an entity so long as it does not arise from a marriage.
Thing is, it didn’t go far enough. Sen. Mike Lee (R-Utah), a constitutional scholar and no fan of freewheeling substantive due process law, saw a hole in the bill that you could drive an 18-wheeler through. He called the amendment “inadequate to address many of the gravest risks posed by this bill, particularly those threatening the tax-exempt status of religious non-profits.”
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And you can count on the fact that the anti-God Left will do just that.
— Mike Lee (@SenMikeLee) November 29, 2022
Lee said his “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.” Since Congress no longer has regular order and is run by the iron fist of Democrats who limit amendments, Lee’s amendment preserving religious liberty didn’t make the cut.
Lee outlined his concerns in a statement he put out before the Senate approved the bill.
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, 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.
[…] 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.
All of Congress knows the weakness of the bill, and representatives plan to pass it on Thursday. Joe Biden vows to sign it.
Let the phalanx of lawsuits begin.
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