Republicans have a chance to save religious Americans from the avalanche of legal assault that will come with Democrats’ ill-named “Respect For Marriage Act” (RFMA). But so far, at least two of the GOP senators who voted to advance the legislation are doubling down on their support for the reckless bill that would endanger religious Americans’ right to decline to provide services that contradict their consciences.
Sens. Roy Blunt of Missouri, Richard Burr of North Carolina, Shelley Moore 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 voted last week to advance the RFMA, which would codify the Supreme Court’s approval of same-sex marriage in Obergefell v. Hodges (and actually go further).
No, the ‘Respect for Marriage Act’ Doesn’t Protect Religious Americans
Some, such as Portman, Collins, and Tillis, tried to couch their support for the bill by erroneously arguing that the legislation will actually protect religious liberty and freedom of conscience.
In reality, the bill enables the opposite by empowering LGBT activists who have already exploited the legal system to target religious Americans. Its lame protections against being “required to provide” services celebrating same-sex marriage are limited to “nonprofit religious organizations,” which clearly excludes businesses that aren’t explicitly religious but can still be owned and operated by devout Christians.
As a result, and as Rep. Chip Roy and legal scholar Ryan T. Anderson have noted, the so-called “Respect For Marriage Act” does nothing to stop vindictive leftists from “dragging good people through the court system and a public tarring and feathering in the media for those simply living their lives in fidelity to God.” That includes targeting wedding vendors, adoption agencies, bakeries, and any other business run by people of faith who refuse to offer services condoning same-sex marriage based on religious convictions.
Despite those concerns, only two of the 12 who voted against their party to move the bill forward responded to The Federalist’s questions asking them to justify their support for the legislation and explain why there are no legal protections for private businesses. Both doubled down and refused to answer the question, also refusing to say whether other so-called “First Amendment protections” in laws such as the FACE Act have adequately protected Americans of faith from harassment and legal persecution.
Lummis, Collins Double Down
Sen. Cynthia Lummis told The Federalist that she will continue backing the bill because she believes it “is consistent” with the Wyoming Constitution and that it adequately ensures “religious liberties for all citizens and faith-based organizations.”
“Equality is enshrined in the Wyoming constitution, and this legislation is consistent with Article I, Section III. As a Christian and a conservative, ensuring that the religious liberties of people in Wyoming are protected and that no institution would be forced to perform a ceremony that is not in line with their values is absolutely essential,” Lummis said. “Furthermore, this bill makes it clear that the tax-exempt status of non-profit religious organizations will not be impacted in any way. Striking a balance that protects fundamental religious beliefs with individual liberties was the intent of our forefathers in the U.S. Constitution and I believe the Respect for Marriage Act reflects this balance.”
Lummis may feel that Wyomingites are “protected,” but faithful American entrepreneurs and business owners like Colorado baker Jack Phillips, Washington florist Barronelle Stutzman, and Colorado graphic designer Lorie Smith, whose case will be heard by the U.S. Supreme Court next month, are still vulnerable to legal persecution under the RFMA.
That’s because the RFMA contains no clear legal protections for private, for-profit business owners who object to providing services for same-sex weddings.
A press secretary for Sen. Susan Collins who declined to be named also reaffirmed the Republican’s support for the bill to The Federalist, repeatedly citing an unnamed “group of prominent constitutional scholars” who say the RFMA “does not create any new litigation risk” for religious organizations, religious individuals, adoption agencies, foster care providers, and for-profit entities because it “allows lawsuits only against those ‘acting under color of state law.’”
Why Their Arguments for the Bill Don’t Hold Water
Collins’s press secretary argued that the phrase “acting under color of state law” excluded the above groups. But Roger Severino, vice president of domestic policy and the Joseph C. and Elizabeth A. Anderlik Fellow at The Heritage Foundation, contends that while “the risk that an average religious institution would be deemed a state actor is rather low … the question is fact intensive.”
As Severino explained:
Religious nonprofit contractors that provide, for example, supervised housing for immigrant families detained on behalf of the Department of Homeland Security, adoption services on behalf of government agencies, or prisoner rehabilitation services mandated by a criminal court might be deemed sufficiently governmental to limit a religious organization’s freedom on marriage questions that could arise in each of those settings.
While the senators’ offices danced around questions asking how they would address a state or jurisdiction’s “antidiscrimination” policies about same-sex marriage that might use the RFMA to target faith-based organizations, both pointed to Sections 2 and 7 of the legislation as proof that religious and nonprofit institutions are protected.
“Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises,” declares Section 2. “Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.”
But that fluffy clause is, as Severino wrote, “legally meaningless.”
Likewise, while Section 7 says “Nothing in this Act … shall be construed to deny or alter any benefit, status, or right of an otherwise eligible entity or person,” Severino points out that “although the bill wouldn’t by its own operation revoke licenses, grants, accreditation, or other benefits for religious organizations that hold fast to man-woman marriage, the bill similarly fails to provide any affirmative defense to prevent bureaucrats from using it as a basis for doing so.”
Going Further Than Obergefell
Not only does the RFMA open the door to unconstitutional acts such as the ones the Supreme Court frowned upon in Masterpiece Cakeshop v. Colorado Civil Rights Commission, but it also reaches beyond the Supreme Court’s Obergefell v. Hodges decision.
As Sen. Mike Lee noted in a letter addressed to his 12 GOP colleagues who voted to advance the Democrat legislation, Obergefell allowed same-sex marriage but it “did not make a private right of action for aggrieved individuals to sue those who oppose same-sex marriage” and it did not “create a mandate for the Department of Justice to sue where it perceived an institution opposed same-sex marriage.”
If the RFMA becomes law, it will do just that. Section 4(b) empowers the attorney general, currently the politically motivated Merrick Garland, to bring civil action against anyone who violates the terms of the legislation.
“What we can expect should this bill become law is more litigation against those institutions and individuals trying to live according to their sincerely held religious beliefs and moral convictions,” Lee warned.
Thanks to the manufactured outrage claiming that the RFMA is the only thing that will protect interracial marriages, anyone who opposes the legislation will be smeared as a racist bigot, and will “effectively be presumed guilty of marriage discrimination and will have a high legal bar to clear in seeking to prove their innocence.”
For the legislation to fail, only three of those 12 GOP senators who voted last week to advance the RFMA have to change their minds before a final vote on the bill, which is expected as soon as the weeks after Thanksgiving.
If these Republican senators value faith, freedom, and the First Amendment like they say they do, each one who voted to advance this bill should apologize and rescind support for legislation that will unleash tyranny on faithful Americans.
After publication, Collins Press Secretary Christopher Knight requested to be named and requested The Federalist list the constitutional scholars who signed onto a letter that, in its own words, concedes the amendment’s religious liberty protections are “not comprehensive.”
