The first point about the Respect for Marriage Act, the proposed federal law concerning same-sex marriage, sponsored by all Democrat and 12 Republican senators, is its secrecy. Although marriage itself is in precipitous decline, probably most Americans still agree with the language in the Respect Act that holds that “[n]o union is more profound than marriage.” Likewise, in the Obergefell same-sex marriage decision of the Supreme Court, which the Respect for Marriage Act is designed to expand into statutory law, Justice Anthony Kennedy wrote of “the centrality of marriage to the human condition.”
So, with the undoubted importance of marriage, why did the Respect for Marriage Act receive no public hearings in either the Senate or the House of Representatives? Such hearings would have benefitted not only the members of Congress but a more important group, the public at large, whom the members are purportedly representing.
The text of the new bill, S. 6480, composed by the bi-partisan group of senators in private, off-the-record negotiations was publicly announced on November 14, introduced into the Senate on November 15, and passed by a filibuster-nullifying vote of 62-37 with 12 concurring Republicans on November 16. Additionally, the consideration of the procedural measure on the floor of the Senate was conducted under a no-debate rule that did not allow senators to offer amendments. The bill requires states to recognize marriages of other states contracted “on the basis of the sex, race, ethnicity, or national origin” of “two] individuals” and likewise provides for federal recognition of all such marriages. The Attorney General is given the power of enforcement.
Secondly, S. 6480 bill is an unusually broad piece of legislation not only about marriage, as if that were not important enough but also about the role of the federal government and about that “other” constitutional separation of powers, the powers of the states versus the power of the federal government.
Third, the Senate bill will be a unique federal statute. One of the things that open public hearings and discussions could have addressed is the centralizing effect of the taking over of a great amount — or all? — of the substance of marriage by the federal government. The consequences will be more profound and comprehensive than the Obergefell decision itself. Despite the modern rise of the activist judiciary, courts are still reactive bodies. They issue rulings only about controversies that begin outside of court. The executive branch, by contrast, is pro-active. It follows up legislation with regulations, and it has the staff to do so; additionally, that staff can be (and regularly is) involved at the beginnings of controversies.
What is more, the context right now is the Biden administration, with its across-the-board dedication to all progressive and woke causes, of which the LGBT+ cause may be its chief policy objective. And the bill, despite prohibiting the denial of any state or federal benefits because of the “sex” upon which marriages are based, goes on in a separate “Findings” section to speak of “diverse beliefs about the role of gender in marriage.” So, is this sex/gender distinction an oversight or mistake, or is it a separate expansion of sex and gender into every LGBT+ variation? The House bill, HR 8404, contains no mention of “gender.”
In 1996, seven years before the Windsor same-sex marriage decision in 2013 and nine years before the Obergefell decision in 2015, President Bill Clinton signed into law the Defense of Marriage Act, passed by massive bipartisan majorities in both houses of the Congress. For all purposes of federal law, that Act defined marriage as the union of one man and one woman “as husband and wife.” And based on its constitutional authority under Article IV of the Constitution to “prescribe” how the Full Faith and Credit Clause shall be enforced, it allowed states to refuse to recognize same-sex marriages from other states. The Respect for Marriage Act would repeal what is left of the Defense of Marriage Act after Windsor and Obergefell redefined marriage. And by establishing the portability of all marriages across the country, the Respect Act would explicitly reverse the Defense Act’s Full Faith and Credit provision protecting individual states.
Like the House bill, the Senate bill contains no definition of marriage, but describes marriage as being “between 2 individuals” and includes additional language stating that it does not imply any “federal recognition of polygamous marriages.” And, indeed, the previously passed House version of the bill likewise speaks of “marriage only between 2 individuals.” Such language is a crucial limitation, since there is nothing in the Obergefell decision that prohibits or eliminates polygamy from marriage. And it can be wondered why polygamy has not been put forward in some city or state as a serious legal proposal since the Obergefell same-sex marriage decision. For the fundamental ruling in Obergefell speaks of marriage in the terms of “liberties” that “are central to individual dignity and autonomy.” And a quick check of the internet shows numerous references to and serious discussions of “polyamory.”
The Congressional introduction of a federal statute, the Respect for Marriage Act, has been prompted by Justice Thomas’ lamentable comment in his concurrence in this year’s Dobbs abortion case overturning Roe v. Wade that the same scrutiny should be applied to Obergefell. On the substance and as a constitutional matter, Thomas is, of course, correct. In Obergefell, the Supreme Court usurped the states’ constitutional authority over marriage in the same way that it had previously usurped the states’ authority over abortion in Roe. And in Dobbs, Justice Alito, writing for majority, with his emphatic “abortion is unique” theme, deliberately tried to avoid such comparisons as Thomas made.
The bill’s protections of religious liberty heavily publicized by the Democrat and the 12 Republican senators is in fact a most parsimonious protection. It explicitly and narrowly applies only to the provision of “services, accommodation, advantages, facilities, goods, or privileges” concerning the wedding ceremony itself, that is, to “the solemnization or celebration of a marriage.” And crucially, the protection is not for every person, business, or organization. It applies only to “nonprofit religious organizations” and affiliated organizations “whose principal purpose is the study, practice, or advancement of religion.” Thus, cake and flower shops, as well as caterers, wedding planners, limousine services, photographers, and musicians, all of whom might plead their religious convictions in not wanting to contract their services with LGBT weddings are excluded from protection.
As such, the bill is a direct attack on and attempt to minimize the Supreme Court’s 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission decision in which the Court ruled that the Commission’s attempt to coerce a Christian owner of a cake shop into providing a cake for a same-sex wedding violated the constitutional principle of neutrality towards religion. But because the Court regarded the unusual anti-religion attitude and statement of especially one member of the Commission as the foundational basis of its decision, the case is not a full-bore free exercise of religion precedent. So, the Respect Act, a new federal law specifically targeted at the Masterpiece case, will have a profound effect on similar cases, although it must be pointed out that Masterpiece was based on the Constitution, not on any state or federal law.
Still more significant is the very recent 2021 unqualified free-exercise decision of the Supreme Court in Fulton v. City of Philadelphia, wherein the Court ruled that Philadelphia’s termination of its long-standing foster-care contract with Catholic Social Services because of that Catholic agency’s refusal to place foster children with same-sex couples was a violation of the Free Exercise Clause. Thus, since the controversy did not concern the actual ceremony of “the solemnization or celebration of a marriage,” the much-touted Respect Act’s protections of religious liberty does not apply. Organizations like Fulton’s Catholic Social Services can still plead the Constitution as superior to the Respect Act in federal court, of course, but those organizations would have the force and effect of a major (“bipartisan”) federal statute against them. As such, since the decision in Fulton was unanimous, what we have here— it is no exaggeration to say — is the beginning of a historic constitutional confrontation between the national judiciary and the national legislature about religious liberty.
On the other hand, and curiously, it must be admitted that the bill has a separate section, which is some kind of independent constitutional guarantee of religious liberty. The Respect Act states that nothing in the 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.” Although it might seem to contradict the previously discussed provisions of the Act, it can be regarded as an endorsement of the rights of cake and flower shop owners et al and of Christian and other religion-based social services to bring their Free Exercise cases into federal court. On the other hand of the other hand, however, this provision is fundamentally feckless since the Congress cannot either prevent or create a citizen’s right to bring a constitutional case into federal court.
Even more remarkable is the inclusion of a “conscience protection” as the basis of a claim or constitutional lawsuit for religious liberty. The Constitution does not mention or guarantee freedom of “conscience.” It guarantees free “speech” and “free exercise” of religion. An unspecified right of “free conscience” would be superior to both. Can the drafters and supporters of the Respect Act really have meant to supply such a general right for any “individual or organization” to challenge everything about the Act?
Citing public-opinion polls, Democrat and Republican supporters of the Respect Act have claimed that a majority of Americans support the genderless equality of all marriages. If that is so, why the rush and secrecy? Moreover, that support may not include eventual wide-ranging effects of the bill, which may include a complete re-definition of marriage. Congressional hearings and open public discussion – democracy — anyone?
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