The Respect for Marriage Act Finally Passed

It's Not a Perfect Bill, But It's Good Enough

My girlfriend and I watched the House debate on the Respect for Marriage Act, H.R. 8404. This is the legislation that would provide same-sex couples with protections under federal laws while also protecting religious freedom and the rights of conscience. We were dismayed by some of the rhetoric from Republicans like Vicki Hartzler (R-MO) and Bob Good (R-VA).

The rhetoric reminded us why we feel so alienated from the Republican Party. We both grew up in Republican households, but we’re both socially tolerant and don’t view an issue like same-sex marriage as being particularly harmful to anyone. That said, we understand that people of faith have a difference of opinion, and we both believe that people should NOT be penalized for having a difference of opinion. Speaking more for myself here, I don’t believe that church officials should be forced to perform same-sex marriages if it violates their doctrine of faith, and I write that as someone who isn’t at all fond of organized religion or the state of evangelical Christianity in the United States.

But this post isn’t about religion, faith, or even my frustrations with the Republican Party, the elected members of which seem to have learned jack shit from the results of the 2022 midterm election.

Looking at the Respect for Marriage Act, I can understand why people say it doesn’t go far enough. Certainly, what it does do is repeal the Defense of Marriage Act (DOMA), which was authored by my mentor, former Rep. Bob Barr (R-GA). Section 3 of DOMA had already been struck down by the Supreme Court in United States v. Windsor (2013). Section 2 was rendered moot by Obergefell v. Hodges (2015).

While the Respect for Marriage Act does repeal DOMA, the bill, which is heading to President Biden’s desk, doesn’t supersede existing state constitutional or statutory prohibitions on same-sex marriage or civil unions. Some may take issue with the term “prohibitions” because most states define marriage to one man and one woman. If it’s not explicitly allowed it’s a prohibition or ban.

The Respect for Marriage Act does provide a loophole, though, because it requires states to recognize marriages performed in other states. If the Supreme Court reversed Obergefell, for example, marriage licenses from states that allow same-sex marriage would be given “full faith and credit” and have to be recognized in a state that bans it. The Attorney General may bring a civil action against any individual who violates the law. A private right of action is also provided to individuals—such as a same-sex couple—in the instance that the law is violated by someone acting under color of state law

While I understand that someone who is a state official may also be a person of faith, and this person may disagree with same-sex marriage on these grounds, such a state official should resign if he or she is unable to perform the functions of whatever job he or she has. We are a nation of laws, and we don’t get to choose which laws we want to follow. (See Romans 3:31, Romans 13:1-5, and Titus 3:1.)

The Respect for Marriage Act also includes religious liberty and conscience protections. Section 7 states, “Nothing in this Act, or any amendment made by this Act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.”

The section further states: “Consistent with the First Amendment to the Constitution, 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.”

Some have complained that these protections don’t go far enough. Eh, the language seems strong, but it’s possible that we may see litigation on this in the future. I also think these concerns, insofar as we’re talking about this bill, border on alarmism. Some may say, “Jason, what about the state law in Colorado?” Sure, I agree that Colorado has a terrible law, and it should be repealed (or struck down), but that’s not what we’re talking about when it comes to the Respect for Marriage Act. Granted, I doubt the Supreme Court, under its current composition, will side against religious organizations should this ever come before the justices.

I’d add that this wouldn’t even be an issue if Justice Clarence Thomas hadn’t mentioned Obergefell in his concurrence in Dobbs v. Jackson Women’s Health Organization (2022). Thomas was writing about the underlying principle of substantive due process, through which Obergefell was incorporated as a right against the states,

He was making a jurisprudential argument that was very easily turned into a political argument because the American public doesn’t understand substantive due process. All anyone who wanted to make this an issue had to say was that Thomas wrote that he wants to revisit Obergefell and take away another right. For what it’s worth, I agree with Thomas on substantive due process and prefer incorporation through the Privileges or Immunities Clause of the Fourteenth Amendment. I also understand that’s not the world in which we live.

I don’t believe people who express their opinions on this issue should be canceled or demonized. I do think a public official has an obligation to fulfill the duties of his or her job, though. That said, I would be among the people who support a religious institution or organization should it be threatened with penalties for its views on same-sex marriage, even if I disagree with them.

I’ve been a supporter of same-sex marriage for years. I have family members and friends who are gay. Some of them are married, and some aren’t. Regardless, I’m really happy for them. Love wins. Again.