Over the last couple of weeks, I have written about the effect the Respect for Marriage Act might have. If the courts were to apply the bill as written, as I explained two weeks ago, then I think people who have religious objections to same-sex marriages should be OK. I stand by that assertion.
However, as I've been listening to more debate over the bill, there is another aspect that should be considered. Even if religious liberty wins in the end, the left understands well that the process one has to go through before they win is the punishment.
Let me explain. Suppose you're a principal of a private Christian school that accepts state funding as part of a school-choice program. You read the Respect for Marriage Act, wondering whether it will affect you. But you zero in on the language that it applies only to those "operating under color of State law." You learn very quickly that that means government actors, not private actors. You breathe a sigh of relief, and you move on.
But after the Respect for Marriage Act gets signed into law, you get an angry phone call from one of your student's parents, who is in a same-sex marriage, and is upset because your school declines to recognize that as a valid marriage. You don't change his mind, but you figure that's the end of it. But the next day, a process server shows up and hands you papers. The angry parent has hired the ACLU to sue you.
"But I'm not the government," you say—and you'd be right. However, the ACLU knows that the language "operating under color of state law" can sometimes be interpreted to apply to people in the private sector who perform traditional government functions. The ACLU argues that because your school takes taxpayer money to educate kids, you fit that role.
Should this happen to you, the good news is such a legal argument would be very weak. But well-funded legal groups like the ACLU – they have the budget to experiment with weak lawsuits in hopes that they might draw a favorable judge and set a precedent. This is your life that they're playing with. But to them, you're just a lab rat for their experiments.
You hire a lawyer and get the case thrown out on a motion to dismiss. But then, the ACLU appeals. They have the money to do it and even take the case all the way to the Supreme Court. All you want to do is get on with your life, but you have to pay your lawyer just to maintain the status quo. You also find yourself in the middle of a PR firestorm that goes on for years.
This is a lesson that the left understands very well: the process can be the punishment, even if you win in the end. I still stand by the assertion that such lawsuits would eventually lose. But the left doesn't always think like us. They don't always focus their attention on meritorious suits that can win. They can be content to spend years beating up the little guy, even if a judge tells them in the end to stop.
Another way they can do this is to try to get the IRS to revoke the tax-exempt status of nonprofits that believe marriage is between a man and a woman, arguing that the Respect for Marriage Act shows that traditional marriage is no longer the public policy of the country. I think that argument is weak. But for the poor soul who gets picked on first, the process will be rough before a judge finally agrees.
Many people cannot afford lawyers to defend them, which makes nonprofit firms like the Alabama Center for Law and Liberty so important. If a group like the ACLU should come after you and drag out the fight for years, it will go a lot easier if you don't have to pay tens of thousands in legal fees. It is ACLL's honor to represent clients for free, but we can only do it through the generosity of donors. If you want us to be well-equipped for the coming fight, please make a tax-deductible donation to support us today.
Ultimately, if the Respect for Marriage Act ever reaches the U.S. Supreme Court, I think the Court will hold that it does not apply to the vast majority of private actors. But it could take years to get there. In the meantime, we must brace ourselves for the left's attempt to punish us through the process, resolving with all our hearts not to deny the Word of God—no matter what happens.
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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