The “Respect for Marriage Act” and the new federal regulation of marriage

What we have here is the beginning of a historic constitutional confrontation between the national judiciary and the national legislature about religious liberty.

(Image: Jingxi Lau/Unsplash.com)

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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About Thomas R. Ascik 21 Articles
Thomas R. Ascik is a retired attorney who has written on a variety of legal and constitutional issues.

30 Comments

  1. Thanks for this article on the mis-named Act.
    Please clarify para. 3, second-last sentence, “The bill requires states to recognize . . .”

  2. Trans lated we want your vote and to get you off our backs. Leave us and our religions alone and we’ll sign this.

    They will come up with another demand(s) even if this passes.

  3. “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 title, which is typical of the Left. The titles they give their bills make them seem like a good thing until one looks closely to find that the bill’s intention the exact opposite of the title. It’s subterfuge at best. “Respect for Marriage” is anything but respect and will lead to SCOTUS being bombarded by cases from the alphabet coalition so that nothing else can be heard. The intent of the Left is to obliterate freedom of religion guaranteed by the First Amendment of the Constitution. It is a blatant attack on people who believe in something beyond themselves.

  4. This “news article” is factually wrong on several points, revealing its true intent of trying to feel comfortable in its desire to discriminate.

    First, this bill has never been secret or secretive. It was debated in the House and has been public knowledge since June. It was publicly debated after the Supreme Court indicated that marriage equality was potentially reversible in a June decision on Roe v Wade. You can easily view the proposed legislation online: https://www.congress.gov/bill/117th-congress/house-bill/8404/text

    Second, the bill was introduced in the Senate in August and at the request of Republican Senators, it was held until after the midterm elections so that it would be debated without the political challenges of the midterm making debate ineffective. After the midterms, the Senators that requested that approach have publicly stated their support for and why they support this bill. Further, the bill received a hearing on the floor of the Senate and will advance to formal consideration and vote by all Senators now.

    As for religious protection, the bill is extremely clear that religious leaders and institutions are protected within their rights to privacy and control in their religious decision-making. Even the Mormon Church now supports this bill.

    This is a civil bill, affording equality to all Americans in being able to have a civil marriage, including the numerous tax, family protection and legal statuses that confers.

    Finally, you even articulate the great extent to which the bill has been discussed, debated and amended to include “on the other hand” significant religious protection.

    Your arguments on this are simply factually incorrect and malicious in intent. You want to discriminate against others for something you hold as a right for yourself: the right to civil marriage in America. Fortunately, the MAJORITY of Catholics support this bill because they see it as fair, moral and just: “Catholics, who constitute more than a fifth of U.S. adults, have been consistently more supportive of same-sex marriage than the population as a whole over more than a decade — much like young adults and Democrats. 70% of Catholics support marriage equality.” https://news.gallup.com/poll/322805/catholics-backed-sex-marriage-2011.aspx

    Do better. You harm the faith by insisting on discrimination.

    • “Marriage Equality” is a clever slogan but it’s not really about equality for all varieties & types of marriages. If equality was the real intent, then we’d be seeing support for polygamous marriages which are legal in other parts of the world & practiced under the radar in the US. If love is love, then who can limit how many we love?
      When we’re honest about it we all discriminate against certain parties entering into marital relationships: those closely related by blood, adults & children, etc. Love may be love but sometimes that love puts you in the crosshairs of law enforcement.

      Poorly catechized Catholics checking off boxes in surveys signifies little beyond their sad lack of catechesis.

    • How ironic. 70% of Catholics in Germany also helped elect Adolf Hitler to the Reichstag in 1933. And human history repeats itself again and Satan laughs another sardonic laugh at the foibles of human hubris.

      • Agreed! However, I would qualify: Baptized Catholics, apparently currently in darkness and hardening of heart, which wounds the Sacred Heart of Jesus more than ignorant pagans.

      • Honestly, if the Catholics voted him in, that may be the same mistake you make by voting against gay marraige. God knows we cannot see the forest for the trees.

    • Do better. You harm the faith by insisting on denying essential Christian doctrine about the nature, purpose, and sanctity of marriage. You also harm the faith by supporting relationships that clearly violate biblical teachings. There is nothing virtuous about defending sin. If you were actually a practicing Catholic, that would be clear as a matter of conscience.

    • Jesus Christ insisted on making judgments that discriminated, or haven’t you read the Gospels? No one within the human race has a right to create a fiction and then codify it into law. And it is untrue that there are any Catholics who understand and accept their faith who support legislation that tries to create a contrived fiction as equivalent to a divine endowment.

    • Jim:

      You included a link in your comment. But that link is to the text of the House-passed bill, HR 8404, which is dramatically different from the expanded final Senate version, S 6480, passed on November 16. HR 8404 contains no provisions concerning religious liberty. S 6480 is in fact a different bill. Let the reader decide.

      There were no hearings in either the House or the Senate about what is perhaps the most important institution in society, marriage, and concerning an unprecedented proposed legislation redefining it nationally in federal law. There should have been multiple days of hearings.

      Yes, it was known for months that at least 10 Republicans were privately caucusing and preparing a take-it-or-leave-it, no-debate bill designed to overcome the filibuster.

      But the only thing that matters is the final version of what was introduced and voted on November 14-16.

      There was one short session of debate on the bill on the date of its passage, November 16. And that was not really a “debate,” it was a comparatively short succession of speeches. In that session, however, Senator Lankford said, “We have had this text now for about 36 hours. It literally just got dropped on us. . . amendments have been shut out. There are no amendments.” Congress. Record, Nov. 16, 2022, page S6735.
      In my article, I posed numerous legal and constitutional questions. Please specifically point out which of those are ignorant, nonsensical, irrelevant, trivial, or merely emotional.

    • Rubber stamping sin and abnormal behavior is not discrimination. Any functional society must have a foundation of laws and rules that are observed. Period. Otherwise all that is left is chaos and collapse. For a couple of centuries now, western civilization has been generally based in judeo-Christian religious belief. “Anything goes’ Is not a part of that. If Jesus was ok with “anything goes”, He would not have told the woman caught in adultery go and sin no more. He would have said, “have fun.” For that matter, He challenged those poised to stone her to examine their own behavior. Which means that certain things, including sexual behaviors, can indeed be objectively wrong if you profess to be a Christian. It is easy enough to codify laws which grant tax breaks, family protection and other legals rights into laws and still NOT recognize that as a “marriage”. Too much lately in our society is being geared to break down all civil law and standards ( general criminality being accepted for example with “flash mob” thefts which are not prosecuted if the goods stolen are under $900). Gay marriage and now a push for legalizing marriages with multiple partners is being proposed. The left in fact is all for accepting all sorts of oddity, and will screech long and loud that those opposing them is a bigot or racist or whatever the slander of the month might be. Many of us are tired of hearing them. I do not care who people want to sleep with, as long as they dont try to push it in my face and codify it as normal in the eyes of the law.

    • “You want to discriminate against others for something you hold as a right for yourself”

      Man has his perspective on matters, yet the Christian views God’s attitude (on any matter) as the correct way to proceed.

      If God places a roadblock in front of us, then it is for our highest and best interest! It is God’s universe, He created it and when man is disobedient things become disordered. God gives us rights and privileges which are green lights, yet we also face red lights. To disobey the signals has consequences!

      1 Corinthians 6:9-10 Or do you not know that the unrighteous will not inherit the kingdom of God? Do not be deceived: neither the sexually immoral, nor idolaters, nor adulterers, nor men who practice homosexuality, nor thieves, nor the greedy, nor drunkards, nor revilers, nor swindlers will inherit the kingdom of God.

      Romans 1:27 And the men likewise gave up natural relations with women and were consumed with passion for one another, men committing shameless acts with men and receiving in themselves the due penalty for their error.

      God is clear on the matter. Whatever a mans besetting sin is, he needs God’s help in overcoming the temptation.
      Some rejoice in their sin and persuade others to follow their lead. Let us speak the truth in love for God’s way is the best path and the only course acceptable to Him.

    • You harm the truth by defending intrinsically disordered sexual deviancy, James.

      Truth is not determined by popular vote.

  5. WOW. Sneak attack. What is going on with our so called democracy. Both the right and the left seem hell bent to tear it apart. The horrid breaking down of separation of the powers in the of the three branches of government if carried to its present trajectory will demolish democracy and throw us into an absolutist State. What happened to “government BY the people? May God help us Christians face the future with fidelity! Our big consolation is that we know what the final outcome will be. We only have to hold tight to the Bark of Peter and ride the waves. May God bless us all.

  6. I have a question. I have heard discussions about separating the “civil” wedding ceremony from the “religious” wedding ceremony. Proponents say that this would protect churches and their pastors/priests from being prosecuted when they refuse to perform marriage ceremonies for non-heterosexual couples or indeed, for any couple, including heterosexual couples, who does not appear to agree with their church’s statements about the nature (sacramental, closed to other sexual partners, etc.) of marriage. Would this be an adequate response if the “Respect for Marriage Act,” God forbid, becomes law? I can see some difficulties, e.g., there are no doubt churches who forbid “mixed” marriages, e.g. two races, two nationalities, etc.–would these churches be prosecuted under Civil Rights laws or would they be protected by holding the position that their religious teachings forbid certain marriages? Thank you for clarifying.

    • Mrs. Sharon, I’m so sorry for your loss. I’m widowed also. It’s a terribly hard thing to go through. God bless you & your family.

      I don’t know of any churches today that forbid interracial marriage but no doubt there’s a congregation somewhere that still holds with that. I think it’s probably become a generational thing that time will have the final say on.

    • Mrs. Sharon, I too am sorry for your loss, having been widowered since 2001 (cancer).

      But, know that things still do get better. And, that what seems an abrupt “separation” is more of a gentle parting, and that the parting is only temporary (!). With St. Paul, more than any words can convey…already we are “surrounded by a cloud of witnesses” (Heb 13:8). Discoveries made in my biographical and meditative treatment of one personal loss within the Communion of Saints (“KRISTI: So Thin is the Veil,” Crossroads Books, 2006).

      In partial response to your question, the separation of civil and church marriage is complicated. At least one reputable Catholic theologian suggested that the separation you suggest should have been triggered some time after 2015 when the U.S. Supreme Court redefined all “marriage” across the board (and which fatwa, in my opinion, committed a privileged! hate crime by branding all defenders of real marriage as “homophobes.”).

      And, in Germany before 2008, a civil marriage was required before an optional church marriage could take place—a condition which was proposed to be eliminated in 2009 in favor of only church marriages for some. But I do not know the outcome. https://www.dw.com/en/new-german-marriage-law-causes-controversy/a-3466047

      Some of the complications are that a purely church marriage does not protect state/legal rights to inheritance, does not assure beneficial tax laws, etc. And, in Germany, at least, the 2008 proposal would open the door to Islamic polygamy and child marriages.
      So, now, in the United States a proposed law which would subordinate some states to gay marriage-parody laws enacted in other states (is this Constitutional?), which is silent on polygamy, and which apparently protects certain tax-exempt institutions from hostile litigation, but not the same First Amendment religious freedom of individual citizens (caterers, etc.).

      Civilization acquiesces while the gangrene of logical positivism spreads, but “the gates of hell shall not prevail….”

  7. I worked for almost 30 years at a psychiatric hospital in New York. I never made it a practice to indulge psychotic patients in any of their delusional ideas. I don’t intend to start now.

    • You took the wise course in aiding the insane. Christians have a duty to speak the truth to those who have a demented outlook that separates them from God! All men have strayed in one way or another, yet God gave us clemency through faith in His goodwill. A profound mystery, yet our God is an awesome God.

      Hebrews 4:16 Let us then with confidence draw near to the throne of grace, that we may receive mercy and find grace to help in time of need.

      Matthew 9:13 Go and learn what this means, ‘I desire mercy, and not sacrifice.’ For I came not to call the righteous, but sinners.”

      Luke 6:36 Be merciful, even as your Father is merciful.

      James 2:13 For judgment is without mercy to one who has shown no mercy. Mercy triumphs over judgment.

      Matthew 5:7 “Blessed are the merciful, for they shall receive mercy.

      1 Peter 1:3 Blessed be the God and Father of our Lord Jesus Christ! According to his great mercy, he has caused us to be born again to a living hope through the resurrection of Jesus Christ from the dead,

  8. “Respect for Marriage Act”?

    Don’t make me gag.

    We might as well call abortion, “pregnancy remediation.”

    The chief hallmark of the evil one is its compulsion to lie, to deceive.

    So it’s no wonder that the evil one’s minions in the Democratic Party deny the truth that is right before all of our eyes.

    • Marriage equality, pregnancy termination, pregnancy reductions, medical “assistance” in dying, gender affirmation, top surgery, bottom surgery, etc…
      Orwell would have a field day.
      🙁

      • Government destroys everything it controls.
        The Federal Leviathan is insatiable.
        Evil never stops.
        There is no compromise (accompaniment) with evil.
        Is our demonic enemy correct in taunting us as the Great Satan. Is that Satan laughing at our Satanism?
        The US is doomed to failure unless we correct substantial systemic errors:
        Federal income tax = slavery
        No term limits = massive corruption
        Universal suffrage = tyranny of ‘special interests’

  9. The bill claims that it does not imply any federal recognition of polygamous marriages. To which I’d add, “For now”.
    Check out Terry Mattingly’s article in getreligion, Nov. 4, “Big Sexual Revolution victory in New York. Where’s the elite news coverage?”

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  3. The “Respect for Marriage Act” and the new federal regulation of marriage – Catholic World Report – The Old Roman
  4. TVESDAY EDITION – Big Pulpit

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