A Deeper Look at The Marriage Act By Gregory S. Baylor

What You May Not Know About the Marriage Act

The misnamed ‘Respect for Marriage Act’ undermines marriage and threatens religious freedom and free speech.

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 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 counter the concerns that had been raised. Sen. Majority Leader Chuck Schumer embraced this new version of the bill.

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

Nevertheless, 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.

On Dec. 8, the House passed the Senate’s amended version of the bill, though it had less support this time around as several Republicans who had previously voted for the bill changed their votes after learning about our concerns.

On Dec. 13, President Biden signed the Respect for Marriage Act into law. 

What does 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 final version:

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.

The bottom line

Congress is prioritizing virtue-signaling over protecting the freedom to hold decent and honorable beliefs about marriage. This unnecessary bill pays lip service to legitimate religious freedom concerns while undermining the First Amendment.

Alliance Defending Freedom remains committed to defending the First Amendment rights of all Americans—including those who will likely be targeted because of this legislation.

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Gregory S. Baylor serves as Senior Counsel, Director of the Center for Religious Schools with Alliance Defending Freedom.

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