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What You Should Know About the Respect for Marriage Act

The misnamed ‘Respect for Marriage Act’ undermines marriage and threatens religious freedom and free speech.
Gregory S. Baylor
Published
Revised
The so-called Respect for Marriage Act is a misnamed bill designed to enshrine same-sex marriage in federal law.

As soon as the U.S. Supreme Court overturned Roe v. Wade in June, activists went to work mischaracterizing the ruling.

Many used the Dobbs v. Jackson Women’s Health Organization decision—and particularly Justice Clarence Thomas’s concurrence—to stoke fears that the Court might overturn other precedents, including Obergefell v. Hodges, in which the Court invented a constitutional “right” to same-sex marriage.

Using this feigned outrage as a cover, these activists pushed for a federal law called the Respect for Marriage Act. The bill is unnecessary and could have a disastrous effect on religious freedom and free speech.

The Respect for Marriage Act was introduced in July and quickly sailed through the U.S. House of Representatives without any public hearings or committee meetings, enabling its proponents to mischaracterize the bill as a simple codification of Obergefell.

After outcry from thousands of religious Americans, faith-based organizations, and churches, a small group of senators offered a substitute version that they claim fixes the bill’s religious liberty problems.

Let’s be clear: the religious freedom “protections” in the new version of the Respect for Marriage Act are nothing more than window-dressing and do little to substantively protect religious freedom.

 

What is the Respect for Marriage Act?

The misnamed Respect for Marriage Act codifies in federal law an incorrect understanding of marriage. And it enables litigation against those who disagree.

While proponents of the bill claim that it merely enshrines the 2015 Obergefell decision, in reality it is a direct attack on the religious freedom of millions of Americans with sincerely held beliefs about marriage. 

The Respect for Marriage Act threatens religious freedom and the institution of marriage in multiple ways:

  • It further embeds a false definition of marriage in the American legal fabric.
  • It opens the door to federal recognition of polygamous relationships.
  • It jeopardizes the tax-exempt status of nonprofits that exercise their belief that marriage is the union of one man and one woman.
  • It could make religious freedom and free speech cases harder to win.
  • It could result in predatory litigation by activists against faith-based social-service organizations that could mire Americans in courts for years to vindicate their rights under the First Amendment.

The truth is the Respect for Marriage Act does nothing to change the status of same-sex marriage or the benefits afforded to same-sex couples following Obergefell. It does much, however, to endanger religious freedom.

 

Has the Respect for Marriage Act passed Congress?

On July 19, 2022, the House passed the Respect for Marriage Act. The vote caught many by surprise: not only did it happen quickly—just one day after the bill was introduced—but 47 Republicans, many of whom likely did not appreciate the threat it posed to religious liberty, voted in favor of the bill.

As the bill moved over to the U.S. Senate, a strong coalition of religious organizations voiced concerns and urged the Senate to slow down and take time to consider its true consequences.

An alliance of over 80 groups sent Senate Minority Leader Mitch McConnell and all GOP members of the Senate a letter urging them to stand firm against pressures to move the bill forward, and over 2,000 church and ministry leaders sent a letter to the Senate specifically calling attention to the effects of the bill on their ability to serve their communities in accordance with their religious beliefs. ADF organized and led both of these initiatives.

After the Respect for Marriage Act sped through the House, the Senate delayed consideration of the bill for months so senators could better understand the harms it will inflict on countless Americans. While many voiced total opposition to the bill, a small group of senators from both parties, led by Sens. Tammy Baldwin of Wisconsin and Susan Collins of Maine, worked to amend the bill to address the concerns that had been raised. Sen. Majority Leader Chuck Schumer embraced this new version of the bill.

Unfortunately, this substitute does very little to fix the bill’s significant religious freedom issues. It merely gives the illusion of addressing the bill’s problems, while giving cover to those committed to supporting the bill.

On Nov. 29, the Senate passed the Respect for Marriage Act as amended with the insufficient protections for religious freedom. In doing so, the Senate rejected three proposed amendments that would have added more meaningful religious liberty protections to the bill. Twelve Republicans joined the Democrats to vote in favor of the bill. These senators cited the addition of the inadequate religious liberty protections to justify their vote.

Because the bill was amended by the Senate, it now heads back to the House for a final vote.

 

What does the current version of the Respect for Marriage Act do?

While the bill’s proponents seemed to acknowledge the objections to the Respect for Marriage Act by virtue of offering an amendment, their amendment failed to address the bill’s problems in a substantive way.

Here are the major issues with this amended version passed by the Senate:

 

1. There are no real protections for religious individuals or organizations.

The amendment added a new section to the Respect for Marriage Act that purports to address religious liberty and conscience concerns.

But rather than adding any new concrete protections for religious individuals and organizations threatened by the Respect for Marriage Act, the new section simply states that those Americans whose beliefs are infringed can invoke already existing legal protections, like the First Amendment and the Religious Freedom Restoration Act (RFRA).  As such, this new provision did not fix the bill’s negative impact on religious exercise and freedom of conscience. Those targeted under the bill will be forced to spend years in litigation and thousands of dollars in attorneys’ fees to protect their rights.

 

2. The amendment leaves numerous religious social-service organizations vulnerable.

The amendment added language that confirms that churches and religious organizations would not be forced to solemnize or celebrate a marriage against their sincerely held religious beliefs.

Unfortunately, this provision addresses a non-problem while ignoring the true threats to religious individuals and organizations. No one thinks the Respect for Marriage Act requires churches to solemnize marriages, and churches have not been forced to do so under other laws.

The real problem is that the bill can be used to punish social-service organizations that work closely with government—like adoption or foster placement agencies that serve their communities in accordance with their religious belief that marriage is the union of one man and one woman. The amendment did nothing to help such organizations.

 

3. The amendment fails to address concerns over nonprofits’ tax-exempt status.

The amendment added a new section that attempts to address concerns about the tax-exempt status of nonprofits that live out their beliefs about marriage.

Once again, the amendment failed to substantively remedy this problem. When the IRS determines whether an organization is “charitable” under the Internal Revenue Code, it asks whether the entity’s conduct is “contrary to public policy” or violates a “national policy.”

If the Respect for Marriage Act were enacted, the IRS could rely upon the bill to conclude that certain nonprofits are not “charitable.” The amendment’s new provision does nothing to prevent this.

Despite claims to the contrary, the new version of the bill utterly fails to meaningfully address the serious religious freedom problems with the Respect for Marriage Act. The inclusion of provisions that purport to address religious freedom concerns may be a sign that senators heard the criticisms of the bill. Unfortunately, their response to the concerns amounts to little more than window dressing.

 

How can I advocate for marriage and religious freedom?

Alliance Defending Freedom is working hard to take a stand for marriage by opposing this bill, but it is imperative that members of the House hear from their constituents about the threat to religious liberty and the institution of marriage that the Respect for Marriage Act represents—even as amended.

We need the House of Representatives to hear from you.

Next week, the House is planning to vote on the version of the Respect for Marriage Act that just passed the Senate. Call your representative and ask him or her to vote NO on final passage of the Respect for Marriage Act.

You can find your representative’s phone number on this page by entering your zip code.

When you call your representative, use these talking points to tell them why the bill is a threat to religious freedom:

  • The current version’s protections merely pay lip service to legitimate religious freedom concerns by restating already existing legal protections—no new, substantive protections are actually created.
  • As amended, the bill still empowers the government to punish tens of millions of Americans who wish to live according to their deeply held beliefs.
  • The bill exposes religious individuals and organizations to predatory lawsuits, and it could weaponize the IRS against faith-based organizations by threatening their nonprofit status.

Every phone call to a representative helps. The Respect for Marriage Act has little to do with protecting rights—quite the opposite. Its text betrays an intent to stigmatize and take rights away, especially from people of faith.

Tell your representative to stand firm against these blatant attacks on religious freedom and the institution of marriage.

Gregory S. Baylor
Senior Counsel, Director of the Center for Religious Schools
Gregory S. Baylor serves as senior counsel with Alliance Defending Freedom, where he is the director of the Center for Religious Schools and Senior Counsel for Government Affairs.