On Wednesday, November 16, the United States Senate invoked cloture on the “Respect for Marriage Act,” which disrespects marriage by changing its meaning with the full force of a democratically elected Congress. The bad news is that, especially when many Americans are suffering, this further hurts our country by invoking the wrath of the One whom we desperately need to help us. The good news is that I don’t think this is the end of the line for Christian cake bakers and others across the country who fear that their livelihoods are at stake.
Let’s begin our analysis with some background of the bill. After the Supreme Court overruled Roe v. Wade, liberals began to fear that the Supreme Court would overrule similar patently unconstitutional decisions like Obergefell v. Hodges. Therefore, they wanted to take some action to ensure that gay marriage remained legal, even if Obergefell was overruled.
Thus, the “Respect for Marriage Act” was born. It passed the House but stalled in the Senate along party lines. But then, a group of Republicans agreed to vote for it in exchange for protections for religious liberty. An amended version was introduced, and the Senate voted to invoke cloture on debate, meaning it will probably pass.
The first question is, “Who would be bound by this bill?” Section 4 of the bill prohibits any “person operating under the color of State law” from denying “full faith and credit to any public act, record, or judicial proceeding” concerning gay marriage. Typically, the language “under the color of State law” refers to public officials executing (or purporting to execute) state law. So as I read the bill, it does not appear to apply to churches, Christian schools, Christian small-business owners who cater to the wedding industry, or the like. Instead, it appears to me to focus on state and local officials.
In other words, if Obergefell were reversed tomorrow and the issue of gay marriage returned to the states, the Respect for Marriage Act would require Alabama to recognize a gay marriage that was created in Massachusetts. It would not necessarily require Alabama to recognize gay marriage altogether, but it would require Alabama to respect such a gay marriage from another state where it was legal.
Since that’s all this does, and since Obergefell already requires this and more, it appears to me that the Respect for Marriage Act is largely a nothingburger. It would only be effective if Obergefell were overruled. And even if it were, it would probably apply more to people like Kim Davis (the Kentucky clerk who was persecuted for declining to approve gay marriages) than Jack Phillips (who wants to run his private business in accordance with his beliefs).
What about religious-liberty protections? Fortunately, Section 6(a) leaves the Religious Freedom Restoration Act’s (“RFRA”) protections in place. So if a Kentucky clerk like Kim Davis, or an Alabama probate judge who didn’t want to recognize gay marriage, wanted to get out of it, they could probably do so, especially if another clerk or probate judge were willing to file it.
Section 6(b) goes on to say that no “nonprofit religious organizations” shall be “required to provide services, accommodations,” etc. “for the solemnization or celebration of any marriage.” So while in theory this protects churches and Christian schools, it doesn’t protect people like Jack Phillips. However, people like Phillips are still safe because the operative language of the Act doesn’t require people like him to do anything in the first place. Neither does it require nonprofits like churches to do anything, either, since it focuses only on public officials. Thus, like the operative parts of the Act, Section 6(b) is nothingburger too.
So after all the hoopla of the Democrats beating the gay-marriage drum and the soft Republicans slapping co-exist bumper stickers on their backs, most of this was just political showmanship. This makes the Respect for Marriage Act different from the so-called Equality Act, which is the law that would really force Christians to bow the knee or face the fiery furnace.
Does this mean the Respect for Marriage Act is inconsequential? No. “Righteousness exalts a nation, but sin is a disgrace to any people,” says Proverbs 14:34. Since our nation is hurting badly, spitting in the face of God is an exceptionally stupid move. If we have any hope of being fixed, we need to start with repentance. Shooting down this bill would be a good start.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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