The U.S. Senate is making welcome progress with a much-needed piece of legislation — but, unfortunately, with a completely unnecessary amendment embedded inside it.
Now that we’re through the midterm elections, the Senate has finally moved forward with the highly anticipated “Respect For Marriage Act”, which would formally repeal the “Defense of Marriage Act.” Under this law, states would be required to recognize all marriages — including same-sex and interracial marriages — so long as they were legal in the state that they were entered into at the time that the marriage took place. And it ensures that no one is denied the same rights and privileges as any other married couple. It is important to note, however, that even though much of the press coverage of this law characterizes it as fully codifying Obergefell, it still leaves room for states to ban same-sex and interracial marriage within their own borders, potentially requiring some couples to have to travel to other states in order to be married.
Perhaps the biggest lesson we have learned from the Dobbs decision is that we cannot trust that our rights will be protected through the judiciary alone. This step to codify a level of marriage equality is clear evidence that Congress has at least partially learned its lesson (though it is still dragging its feet on abortion and other fundamental rights). Time is certainly of the essence: The Supreme Court clearly signaled in the Dobbs decision that it is willing to revisit same-sex marriage, birth control and anti-sodomy laws in the near future. Here at the Freedom From Religion Foundation, we’ve been closely watching the development of the Respect for Marriage Act. While we’re celebrating the fact that it appears to be on track to become law, we’re perturbed by the Senate’s most recent amendment — inserting superfluous “religious liberty protections” into the bill.
The addition of the “religious liberty” amendment serves to clarify that the Respect for Marriage Act cannot be interpreted in a way that would require houses of worship and other religious entities to perform marriage ceremonies. In terms of actual function, this amendment is window dressing. The idea that religious institutions would be forced to perform marriage ceremonies that conflict with their beliefs is beyond constitutionally laughable. That has never, and will never, happen. Yet, it seems that this amendment was necessary in order for this bill to receive enough bipartisan support to get passed.
That brings up the question: Why was a functionally redundant amendment the sticking point? To answer this, we need to take a step back and look at the history of anti-discrimination protections in the United States.
Back in the 1970s, Bob Jones University, the notoriously megaconservative Christian college, lost its tax-exempt status due to its ban on interracial dating. The IRS determined that granting tax-exempt status to an institution so flagrantly violating federal civil rights law was unquestionably contrary to federal policy. When the Supreme Court made its final decision on this case in 1983, upholding the IRS’ decision, it was considered a major win for the separation of church and state, and the general concept of the rule of law.
This decision also fundamentally changed the course of American history.
White evangelical Protestant institutions began to scramble as it seemed they were losing their grip on American political power. In the wake of the civil rights movement, overt racism and opposition to integration and interracial marriage were now enough to kill a political career. These institutions needed a proxy issue — something their handpicked candidates could hide behind during elections while quietly pushing racist policies in office.
Historically speaking, abortion hadn’t been a concern of major evangelical Protestant institutions, since it had long been considered a Catholic issue. In the lead up to and aftermath of Roe v. Wade, the Southern Baptist Convention passed two different resolutions calling for the legalization of abortion. The “murder of an unborn child” however, is the perfect rhetorical tool for a politician trying to signal a very specific type of morality. Ignoring the theological concept of original sin, the “unborn child” is portrayed as the only morally pure person on the planet (right up until the moment of birth, anyway). Evocative imagery of murdered children preyed on the natural instinct to protect our young. White evangelicals were not only able to recapture the political power that had been slipping away in the latter half of the 20th century, but bring Catholic voters into the fold along with them. This created the massively wealthy and influential network of religious institutions that has culminated in the threat of Christian nationalism that we’re seeing today, dismantling decades of social progress at an increasingly fast rate.
The leaders of these extremist religious institutions have not forgotten the Bob Jones case, and the threat that social progress poses to their political power and bank accounts. Every expansion of civil rights law has been met with false cries that the government is making religious practice illegal. When certain senators demanded the religious exemption amendment to the Respect For Marriage Act, they mobilized every ounce of their political influence not because there is a genuine threat to religious liberty, but because they want to demonstrate that they are still in control. As soon as the amendment was added, the bill suddenly had bipartisan support, and even the Mormon Church came out in support of it.
This amendment is not dangerous because of what it does necessarily, but rather because of what it symbolizes: the power of religious extremists to dictate who gets to receive the full protection of the law.
There are those who will look at the course of this bill and celebrate it as a win for compromise and democracy. I myself am the first to say that this bill, while far from perfect, is also far from a failure, and the protections it does enshrine are absolutely critical. I believe in compromise and living in a diverse, pluralistic society. I believe in a democratic system of government that ensures that everyone is represented and treated equitably under the law.
This was not a compromise, however — it was a hostage situation. Until our lawmakers from all parts of the political spectrum muster the courage and integrity to stand up to these religious institutions and fortify the wall between church and state, our basic fundamental rights to live and love as we please will never be fully guaranteed.