same sex marriage religious freedom

The Same-Sex Marriage Bill: a Deceptive Claim of Protection for Religious Freedom

Rick Plasterer on November 28, 2022

The pending same-sex marriage bill, H.R. 8404, which would become the Respect for Marriage Act, and is being advanced as statutory affirmation of same-sex marriage in the event that the Supreme Court’s same-sex marriage decision, Obergefell vs. Hodges, is ever overturned, is actually worse than it appears, as the interested public is becoming aware.  

It is more than a bill to establish at a statutory level what the Supreme Court decreed as constitutional law. It is really a somewhat limited national same-sex marriage antidiscrimination law, and beyond that, could be appealed to as national policy with real consequences for religious or other objectors to same-sex marriage, whether individuals or organizations.

While the bill has been able to advance through the Senate with support from some sources historically opposed to same sex marriage, hard eyed policy analysts, such as Gregory Baylor of the Alliance Defending Freedom and Roger Severino of the Heritage Foundation have carefully shown that there is little real compromise in the bill. The bill includes protection for religious liberty already existing in law, while leaving religious organizations that work closely with the government (such as adoption agencies) vulnerable to attack in federal court. This regime would exist in all parts of the country, including where there are not now sexual orientation and gender identity (SOGI) laws.

Evaluation of the Proposed Law

The first issue is of course that the logic of same-sex marriage finally destroys marriage. If justice requires that any two adults may marry, then the same argument of personal fulfillment as the reason for marriage would also mandate polygamy, polyamory, child brides, or incestuous marriage. Marriage becomes an association of two or more people who somehow have commitments to one another, which is pointless. While the RFMA has been amended to require recognition of marriage between only two people, it still requires the federal government and all states to accept any state’s definition of marriage (such as California’s child bride law). Marriage only makes sense as the union of male and female, with the possibility, at least in principle (if not reality), of establishing a family with the couple’s natural offspring. So what the legislation is trying to secure is wrong to begin with.

It’s also wrong because for the first time, Congress would be giving its approval to what the Supreme Court decreed. The court imposed same-sex marriage on the nation and on many unwilling states. The United States Constitution says nothing about sex, marriage, or the family. Both the court’s action and Congressional action on this issue are unconstitutional. The only basis for the imposition of same-sex marriage was an appeal to justice overriding strict construction in constitutional interpretation.  As stated above, the personal fulfillment doctrine would require the abolition of marriage. And, by the logic of gender ideology, which separates sex from the body, the same justice would require whatever an individual longs for, overriding all law.

This irrationality shows why same-sex marriage is different from interracial marriage, to which it is being compared. Interracial marriage involves the union of one man and one woman, and thus is truly marriage. Same-sex marriage does not, and thus is not marriage. As observed in an earlier article, the Civil War amendments (especially the Fourteenth and Fifteenth) were enacted to mandate racial equality, and reasonably justify interracial marriage, and the Loving vs. Virginia decision (1967) which secured it. There was little reason to include interracial marriage in the same-sex marriage bill, except to tar opponents of same-sex marriage with the label of prejudice.

Congressional approval leads to what is the most pressing problem with the legislation – it establishes same-sex marriage as national policy. Any dissent from the righteousness of same-sex marriage, whether religious or not, is dissent from a rule of justice. It is at best an indulgence and at worst an injustice that should be corrected. This distortion of the instructional function of law should be seen as one of its important features, particularly with respect to young Americans, as the Religious Freedom Institute recently noted.

As has been noted by Severino, because same-sex marriage would be national policy, it can be used to take away tax-exempt status, accreditation, licensure, government contracts or grants, or other government benefits. Again, it has been noted that while the proposed law explicitly says it does not require this, it can nevertheless be done by the IRS. Other government benefits (i.e., contracts or grants) can be denied by other government agencies, just as the Civil Rights Act of 1964 did not require the revocation of Bob Jones University’s tax-exempt status. But the status was revoked by the IRS due to the school’s prohibition of interracial dating as being contrary to national policy.

And thus the long list of government benefits which are secured for religious organizations in the H.R. 8404, and the long list of different types of religious organizations protected, mean little, because they are only secure from the action of the proposed law itself, not from a federal agency’s determination that a religious organization’s adherence to opposite-sex only marriage is contrary to national policy, as established by the proposed law. They also mean little because all that is secured is protection against adverse action because of refusal to solemnize same-sex marriage, not refusal to recognize it.

This last problem leads to another threat of the bill, namely, the right it establishes to private lawsuits for violations of the law by organizations that act “under color of state law” (i.e., organizations working closely with the government, as adoption agencies arguably do). This makes it a kind of national SOGI law, not as bad as the Equality Act, since it applies only to same-sex marriage, not homosexuality or transgenderism in general, but nonetheless dangerous. There will now be something like a SOGI regime in states and localities that do not at this point have it. Contentious litigation against Christian organizations in conservative areas can be expected if the bill passes.

A good example would be Catholic Charities of Philadelphia. The Supreme Court unanimously found that it does not have to provide foster children to same-sex couples, because the court ruled that possibility of a secular exemption in the law (which did exist) mandated a religious exemption. But Catholic Charities could be sued under the RFMA for providing children to opposite-sex married couples, but not same-sex married couples. The agency would be discriminating against same-sex marriage, not same-sex weddings, and since it can be held to act “under color of state law,” it would be guilty of violating a federal law, not a city ordinance.

And this would be true of an adoption agency in Jackson, Mississippi, where there is a state Religious Freedom Restoration Act (RFRA) which recognizes religious conscience objection, including against homosexuality. It is true that RFMA reaffirms the federal RFRA for defendants sued under the RFMA (while the Equality Act proposed to take away RFRA as a defense). Nevertheless, religious social services remain vulnerable to federal lawsuits if they are judged to be state actors, and discriminate against same-sex marriage, rather than same-sex weddings. Of course, religious social services do not normally perform weddings.

An earlier article observed that opinions about religious freedom with respect to homosexuality or transgenderism track almost perfectly with religious doctrines about homosexuality. With RFMA, however, some actors in the cultural struggle that continue to believe that homosexuality is sinful now support the legislation, weakening the front against it.

Denominational Positions

The two largest religious groups in the United States, the Roman Catholic Church and the Southern Baptist Convention, both continue to maintain that homosexuality is sinful. The relevant bodies in both groups which speak to these matters have issued statements against the RFMS. The United States Conference of Catholic Bishops opposes the legislation. They observe that the Obergefell decision “created countless religious liberty conflicts,” but the RFMA will result in yet more litigation, and does not have adequate religious liberty protections. A recent statement on Wednesday re-emphasizes their opposition as the final vote approaches.

Southern Baptist Ethics and Religious Liberty Commission also opposes the legislation. In a statement written before the recent 63-37 vote advancing the bill through the Senate, the ERLC points out in particular that RFMA “raises serious religious liberty concerns for [religious] individuals and organizations” who “are in contract with, funded by, or working jointly with the government.”  It notes that the bill only protects against solemnizing same-sex marriages, not recognition of same-sex marriages, and that religious organizations which work closely with the government (perhaps above all adoption and foster care agencies) must deal with marriage related issues but never facilitate weddings. It notes that H.R. 8404 basically reiterates religious liberty protections already existing in law, while introducing new threats of lawsuits (where recognition rather than the celebration of marriage is involved).

On the other hand, the National Association of Evangelicals, while clearly annunciating a belief in opposite-sex only marriage, seems to take no public position on the RFMA, while praising the efforts of senators Tammy Baldwin (D.-Wis.), Susan Collins (R-Me.) and Tom Tillis (R-N.C.), to include religious liberty protections in the bill. But these protections, as noted above, are not substantial, since they pertain only to the solemnization of marriage, not the recognition of marriage. Houses of worship do arguably act “under color of state law” when performing weddings, but they are not getting sued, and likely courts would give them First Amendment protection anyway, while religious social services (especially adoption agencies) also arguably act “under color of state law” when they work closely with the state in providing their services but are being asked to recognize same-sex marriages, not perform same-sex weddings.

The Orthodox Union Advocacy Center, the public policy arm of the Orthodox Union, the nation’s largest Orthodox Jewish organization, said it cannot support the main purpose of the bill, but appreciates inclusion of (the meager) religious freedom provisions.

Religious groups supporting the legislation most prominently included the Church of Jesus Christ of Latter-day Saints (Mormon Church). It continues to believe in opposite-sex only marriage, and historically has strongly opposed homosexuality. But since 2015, it has favored solutions like the “Utah compromise,” worked out to enact the state’s SOGI law. Essentially Utah’s legislation protects religious organizations from performing same-sex weddings, protects religious counseling, and secular counselors in their non-professional expressions of traditional morality (a rather major concession for a protection everyone should have), in exchange for LGBT antidiscrimination housing and employment law.

Another religious group supporting RFMA that maintains a belief in opposite-sex only marriage is the Seventh-Day Adventist Church. While expressing support for its religious freedom provisions, these amount to nothing not already existing in law, as was noted by critics.

Among churches that have supported LGBT advance in the past, two denominations in particular stand out, The Episcopal Church Office of Government Relations enthusiastically supports the legislation. It began its short statement with a “love is love” theme, and then went on to urge passage of H.R. 8404 to protect the right to same-sex marriage in all 50 states which was guaranteed by the Obergefell decision.

United Church of Christ activists met with legislators to support the bill. It likewise mainly emphasized the need to protect the result of the Obergefell decision. It has history of long-standing support for same-sex marriage.

The Religious Action Center of Reform Judaism similarly supports the bill, again citing the need to protect Obergefell and current majority support of same-sex marriage by the public and within different religious groups.

The United Methodist Church, Christian Church (Disciples of Christ), Evangelical Lutheran Church in America, and the American Baptist Churches – denominations often held to constitute the remainder of what has been called “mainline Protestantism” – do not at this point have statements.

The divide in the Evangelical world between liberalizing “Evangelical elites” and the rank-in-file committed to straightforward Biblical doctrine was shown by a recent article in Christianity Today supporting H.R. 8404, while the Christian Post ran an article opposing it, and Michael Brown wrote in the Christian Post about why the Christianity Today article was wrong.

Conclusion

Public clarity about the bill is not helped by the resolute mainstream media support for LGBT liberation. The Associated Press ran a story a week ago maintaining that claims that H.R. 8404 would result in the revocation of tax-exempt status are false, and there are substantial protections for religious liberty. As Roger Severino explained, H.R. 8404 doesn’t, of its own operation, revoke tax-exempt status, or other benefit, but it provides the basis for a government agency to do that, because same-sex marriage will be national policy.

The first reason the bill is wrong is that it effectively states that religious doctrine about marriage is wrong. Most religions, as this writer noted several years ago, have historically held non-marital intercourse (referring to opposite-sex marriage) to be wrong, in fact radically wrong. Under the bill, choice of sex in one’s marriage partner is a matter of justice, and violations of it are unjust. The very word “respect,” conveys that. Any religious liberty protections granted are exceptions to a rule of justice. It is hard to see how this can last if the law is countenancing injustice.

Of course, the Obergefell decision says the same thing, but that was the opinion of five lawyers, imposing their will on the nation and acting sheerly on the basis of their own sensibilities. H.R. 8404 would be the nation speaking.

Secondly, virtually no religious exemptions are granted. As noted above, the long list of types of religious organizations protected, and the long list of government benefits that may not be denied because of religious conscience refusals are deceptive because they apply only to same-sex weddings and nothing else. People across the political spectrum, from left to right, maintain that clergy should not be required to perform same-sex weddings, and religious educational and social services almost never perform them, if ever. LGBT liberation is giving nothing up in exchange for a threat of lawsuits to organizations that cooperate closely with the government, and loss of possible tax-exempt status for not recognizing same-sex marriage, rather than performing weddings It is a compromise which is no compromise at all.

Some, of course, think there should be no compromise with religious freedom. Rachel Laser, President of Americans United for Separation of Church and States maintained that H.R. 8404 is a “vital step in our nation’s march toward freedom without favor and equality without exception.” The problem here is that everyone has religious freedom. Even atheists have religious freedom not to be religious. If religious freedom means anything, it means that people cannot be required to act against religious precepts. It is by definition wrong to take action believed sinful or evil. And that is what complicity in sin involves, as Jesus clearly said.

If the bill’s sponsors are serious about respecting religious liberty, they would include Senator Mike Lee’s amendment which actually does protect religious organizations from lawsuits and denial of government benefits. It reads “the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that such person speaks, or acts, in accordance with a sincerely held religious belief, or moral conviction, that marriage is or should be recognized as a union of— (1) one man and one woman; or (2) two individuals as recognized under Federal law.”

The fact that the bill’s supporters are unwilling to consider this shows that they are not serious about protecting religious liberty, or even balancing it against other interests. Christians should resist the bill as far as they can, and if faced with ruinous lawsuits, court judgments, or institutional closure, obey God rather than men and take the penalty the state imposes, knowing that our overriding duty is to God.

  1. Comment by "This is a hill to die on" on November 28, 2022 at 10:27 am

    I heard/read a commentator of a conservative bent saying last week about the bill: “Is this really a hill the Republicans want to die on” for the 2024 election?

    Yes it is.

    If this bill passes the left will try to use similar bills to limit all speech they don’t like and muzzle the church at the same time. There is no compromise on this bill, and sadly those denominations that do not take a stand are taking a stand. They are in support of the bill and are willing to throw Christians to the wolves of the state as long as it fits their policy positions.

    I’ll never bow a knee to this bill, and I’ll donate cash to any organization involved in the inevitable Supreme Court challenge to it.

  2. Comment by John Kenyon on November 28, 2022 at 10:32 am

    Great article. Thanks, Rick. I am still working to understand this. Marriage in the Church is a covenant among a man and a woman, God and the Church, but even in the Church a couple must get a license to marry from the state; ergo enters the state into holy matrimony. Upon the occasion of divorce, the married couple seeks relief from the state, not the Church. Am I wrong to wonder if SCOTUS should never have heard Obergefell vs. Hodges on the grounds of discrimination rather than leave it to states’ rights? Very befuddled.

  3. Comment by David on November 29, 2022 at 6:22 am

    As Luther stated, marriage is a worldly matter. Churches in many countries do not have the right to marry anyone without the permission of the state. In Napoleonic law countries such as France and much of Latin America, a church marriage ceremony is not legally valid. Couples must first have a civil ceremony at city hall and then a religious ceremony if they choose. “By the authority vested in me by the state of ____…”

  4. Comment by David Allen Charlton on November 29, 2022 at 11:00 am

    David,

    I have never used the phrase “by the authority vested in me by the state of” in any wedding I have ever performed over the 29 years of my ministry. If ministers cease acting as representatives of the state by signing wedding licenses will that be enough for the most ardent proponents of same-sex marriage. I doubt it. The goal is to make everyone comply.

    David Charlton

  5. Comment by David S. on November 29, 2022 at 1:46 pm

    David Charlton, I agree with your concluding comments. Sadly, I don’t think David ever grasps that the secularists will not stop until the church is buried in its grave, based on his history on contrarian comments as to why those holding to orthodoxy on this page are wrong, and is all too willing to settle for the world’s rather thin soup, made from the shadow of a pigeon that starved to death. Fortunately, we know from both history that the Egyptians, the pagan tribes of Canaan, Assyrians, Babylonians, the Greeks, the Romans, the Muslims, the leaders of revolutionary FranceNazis and Bolshevics, the CCP, the Kim Dynasty, and countless others have tried that and failed, and the final chapter of the Scriptures that in the end, secularism too, no matter how loudly it calls evil good and good evil, will also fail.

  6. Comment by Jeff on November 30, 2022 at 12:58 am

    David S,

    >> Sadly, I don’t think David ever grasps that the secularists will not stop until the church is buried in its grave,

    With all due respect, you’re overthinking this. David is an antichristic troll. The less attention he gets, the better.

    Blessings,
    Jeff

  7. Comment by David on November 30, 2022 at 6:59 am

    It is remarkable how a simple statement of facts elicits such personal attacks.

    Secularists may regard religionists as misguided and superstitious but generally tolerate them unless they attempt to force their beliefs on others. We formerly had “blue laws” where businesses had to cease operation on Sundays. With nothing else to do, it was thought that this would increase church attendance. Of course, Sunday was never the biblical Sabbath but never mind.

    Religious intrusions into secular government include religious slogans on currency and changes to the pledge. “In God we trust” is now gouged into the marble above the House speaker that was formerly blank. Then there were the attempts to censor movies, publications, and performances as a way to control public morality. Clearly, that battle was lost. Sex and reproduction were other areas that religion tried to control. In states where the people were allowed to vote on the issue, abortion restrictions were recently defeated. This reflects the reproductive freedom of the era when the US was founded.

    I am unaware of any church being forced to perform a marriage. Churches are essentially private clubs and can admit members and offer such activities as they see fit. Yet, the gay bogeyman is said to prowl the country endangering them. Granted, there are advanced countries where hate speech is not tolerated as in the US. Inciting enmity towards various groups can be illegal.

  8. Comment by Rick Plasterer on November 30, 2022 at 12:19 pm

    David,

    As I’ve said before, it is secularists who are forcing their beliefs on religious believers when they require them to take actions believers understand as sinful or evil. One should obviously not take an action believed evil. At this point, we still have the protection of the federal RFRA, but that is a balancing test, not a guarantee that conscience objection will be respected , as Sen. Lee’s amendment would have been. Happily, most Republicans who voted for the RFMA also voted for Lee’s amendment, so they’re on record supporting religious freedom if and when there is an attempt to pass the Equality Act, or otherwise threaten RFRA.

    Rick

  9. Comment by jason smith on November 30, 2022 at 2:21 pm

    is everyone here forgetting the concept of the separation of church and state? marriage is defined as a relationship between two consenting ADULTS. no room for misinterpretation.

  10. Comment by Tom D on December 2, 2022 at 3:20 pm

    >is everyone here forgetting the concept of the separation of church and state? marriage is defined as a relationship between two consenting ADULTS. no room for misinterpretation.

    https://fallacyinlogic.com/appeal-to-authority-fallacy

  11. Comment by David Gingrich on December 5, 2022 at 6:31 am

    C.S. Lewis wrote that the English word “love” actually means four different things. The English word “marriage” now means two different things. The first is Godly marriage, the union of a man and a woman and the creation of a family. The second is Government marriage. The Government can define “marriage” for itself. But it cannot make it Godly.

  12. Comment by George w. on December 5, 2022 at 3:21 pm

    Just read the first amendment of the Bill of Rights and it clearly states the government can make no law to regulate or prohibit the free exercise of religion except at work, public places, schools, public roads and highways, parks, etc,etc,etc……… oh, and don’t talk politics in your church or you may lose your tax exemption . Keep it down at home also.
    It bothers David.

  13. Comment by Diane on December 6, 2022 at 4:28 am

    I believe any couple that wants to marry should first be required to have sex-chromosome testing and a doctor’s certification that anatomy and other sex traits align with chromosomes.

    If we did this, I think we would end the debate on same-sex marriage. Two percent of the population is estimated to be born with a difference in sex traits, just as two percent of the population is born with the rare trait of natural red hair.

    So, Jack and Jill get tested before their marriage …both are members of the Global Methodist Church. Oops, Jill has the outer anatomy of a female, has always identified as female, has “female” on her birth certificate, but, oh, dear, she has internal male reproductive tissue (testes), no ovaries, no womb. She is biologically male, having. XY chromosomes. Jill is AIS – she was born with Androgen Insensitivity Syndrome, just one of many intersex conditions.

    Would conservatives consider Jack and Jill a same-sex couple or an opposite-sex couple? Because both are biological males and shouldn’t that define sex? If Jill identifies as a woman, does that make her a woman, even though she lacks XX chromosomes?

    What does God think about this? Is Jill a man or a woman? What’s the definition of male? Female? Do requisite body parts and chromosomes make a marriage right in God’s eyes?

    This is reality folks. I know people who are intersex and married. Neither the state nor the church care about chromosomes and body parts – there’s no test do determine if a couple is opposite or same sex. We just take their word for it.

    And what to do with someone whose birth certificate says “intersex” for gender (now allowed in 2 states)? Can these folks marry, if they’re neither male or female on their birth certificate?

    If marriage were between a man and a woman only and testing for chromosomes and body parts were required before a license, there’d be a lot of couples who assumed they’re “opposite sex” who’d be disqualified. And a lot of parents would be bewildered if their son or daughter suddenly couldn’t marry someone of the opposite sex because, oh, dear, they’ve learned their son or daughter is intersex.

    God in God’s wisdom created intersex folks in the divine Creator’s image. Imagine that, God never consulted with conservatives before creating intersex folks. What to do with folks who don’t come neatly packaged as conservatives assume all of us should be?

    How would you explain your reasoning to God, not me? Would you say, gee, God, your intersex created people are freaks, abnormal, and don’t count because just two percent are created in your (God’s) image)? Does God think intersex peo0le should be allowed to marry?

  14. Comment by Dan on December 9, 2022 at 12:05 pm

    I am so tired of the bullsh!t that God created intersex/homo/gender fluid/two spirit, et.al. He did not – full stop! He created them male and female. The sin that infected the created order was the cause of deviations from God’s original creation. Oh, by the way, God IS love – BUT, Love is not God so drop the tired old “Jesus loves everyone just the way they are.” Jesus does not follow Billy Joel song lyrics!

    As an interesting theological aside, I guess there are some people who are going to be disappointed with their perfected, resurrection bodies when the time comes!

  15. Comment by Search4Truth on December 9, 2022 at 7:51 pm

    Sorry Dan, I doubt that will be the case. Jesus did say, “If you love me, you WILL keep my commands.” And he made it clear that those are the ones he will invite into His father’s kingdom. I am baffled by the immense volume of love talk that also says it’s what I want, not what you want. Am I wrong on this, didn’t the discussion in the garden go just opposite of that?

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