In a Nov. 16 roll call, the U.S. Senate voted 62–37 to bring the Respect for Marriage Act to the floor for a vote on passage.
The Respect for Marriage Act was introduced earlier this year with the purpose of repealing the 1996 Defense of Marriage Act and codifying protections for same-sex “marriage” into law. That law gave a federal definition to “marriage” as being between one man and one woman, and “spouse” defined as “only a person of the opposite sex who is a husband or wife.” The law requires federal and state recognition of same-sex “marriages” considered legal in the jurisdiction where they took place.
The push for the law came after the overturning of Roe v. Wade. In a concurring opinion in the Dobbs ruling, Justice Clarence Thomas suggested that the “Supreme Court should reconsider opinions protecting same-sex relationships, marriage equality and access to contraceptives.”
Though that view was explicitly rejected in the Dobbs majority opinion, in response, the Respect for Marriage Act was introduced and passed in the House of Representatives in July of this year.
According to the Respect for Marriage Act summary, “the bill repeals and replaces provisions that define, for purposes of federal law, marriage as between a man and a woman and spouse as a person of the opposite sex with provisions that recognize any marriage that is valid under state law.”
The bill goes even further as to “repeal and replace provisions that do not require states to recognize same-sex marriages from other states with provisions that prohibit the denial of full faith and credit or any right or claim relating to out-of-state marriages on the basis of sex, race, ethnicity or national origin.”
In the event that a state should choose to neglect these new provisions, the bill authorizes “the Department of Justice to bring a civil action and establishes a private right of action for violations.”
The Ethics & Religious Liberty Commission of the Southern Baptist Convention opposes the bill because it contradicts God’s design for marriage and threatens religious freedom.
The Senate must still vote to pass the proposal, and the House of Representatives, which approved a different version earlier, must endorse the Senate-amended bill, but the enactment of the measure into law appears certain.
The Nov. 16 Senate vote to take up the Respect for Marriage Act was likely the last opportunity for the bill to be stopped.
The Senate had originally planned to take up the bill in July following its passage in the House of Representatives, but when concerns about the bill’s effects on religious liberty were raised, it was delayed until after the August recess and again until after last week’s midterm elections.
Religious liberty concerns
In an effort to gain additional Republican support and overcome that 60-vote threshold, a bipartisan group of Senators have amended the bill fixing the error that would have allowed for future recognition of polygamous relationships and attempting to assuage some religious liberty concerns.
Though it could be argued that this amendment marginally improves the bill, the vast majority of religious liberty concerns remain insufficiently addressed. The ERLC continues to oppose the Respect for Marriage Act and will work against its passage into law.
In a letter sent to the U.S. Senate on July 26, ERLC President Brent Leatherwood conveyed why the Respect for Marriage Act presents such grave religious liberty concerns for people of faith.
He said, “Given the significant role marriage plays in faith, the ‘Respect for Marriage Act’ raises serious religious liberty concerns for individuals and organizations who maintain this view of marriage (the view that marriage is an institution created by God between one man and one woman for life) and are in contract with, funded by, or working jointly with the government.”
Since Obergefell, rights of conscience and religious freedom have found themselves in the crosshairs of a number of notable cases including Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) and Fulton v. City of Philadelphia (2021), each of which was ruled in favor of religious liberty. Should the Respect for Marriage Act find passage, however, we may rightly assume that rights of conscience and religious freedom will find themselves under threat yet again.
In response to these concerns, Sens. Tammy Baldwin (D-WI), Susan Collins (R-ME), Thom Tillis (R-NC), Rob Portman (R-OH), and Kyrsten Sinema (D-AZ) released a bipartisan amendment that fixed a previous issue around polygamous relationships and attempted to address concerns raised about the religious liberty of those who hold to a traditional view of marriage.
Supporters claim the amendment, “Protects all religious liberty and conscience protections available under the Constitution or Federal law, including but not limited to the Religious Freedom Restoration Act, and prevents this bill from being used to diminish or repeal any such protection.” It also protects churches or “nonprofit religious organizations” from being forced to provide goods and services for the “solemnization or celebration of marriage.”
The amendment additionally tries to guarantee “that this bill may not be used to deny or alter any benefit, right, or status of an otherwise eligible person or entity – including tax-exempt status, tax treatment, grants, contracts, agreements, guarantees, educational funding, loans, scholarships, licenses, certifications, accreditations, claims, or defenses – provided that the benefit, right, or status does not arise from a marriage.”
Amendment is ‘insufficient’
Though the ERLC is grateful for these marginal improvements to the original version of the bill, the bipartisan amendment does not provide adequate protections for religious liberty. This bill, even as amended, does not provide meaningful protection for those that maintain a traditional view of marriage. This amendment invites further confusion and litigation without offering sufficient security for the many faith-based organizations serving their communities outside of “solemnizing or celebrating marriages.” Through reiterating the protections that already exist in the law and using unhelpfully vague language, the amendment appears to offer people and institutions of faith more additional protection than it actually does.
At a more fundamental level, this issue transcends electoral politics. For the ERLC, this is about human flourishing, love for our neighbors, and faithfulness to God’s word. Underlying the SBC’s commitment to biblical marriage is a verse from the first book in Scripture: “God created man in His own image; in the image of God He created him; male and female He created them” (Gen. 1:27). Aside from the multitude of religious liberty challenges this bill poses, we ultimately oppose it because we hold fast to this understanding of God’s design of marriage as being between one man and one woman for life, and we know that this biblical framework undergirds a healthy society and promotes human flourishing.