What’s in Senate’s Same-Sex Marriage Bill, Why It’s Threat to Religious Freedom

The U.S. Senate is considering legislation that could have dire consequences for religious freedom. 

The so-called Respect for Marriage Act goes beyond codifying same-sex marriage in federal law to make the acceptance of gay marriage compulsory. 

“The so-called Respect for Marriage Act will just simply lead to more attacks on Americans’ religious liberty,” says Jay Richards, a senior research fellow at The Heritage Foundation. (The Daily Signal is the news outlet of The Heritage Foundation.)

Richards joins “The Daily Signal Podcast” to discuss the bill and why it poses a threat to Christian organizations and anyone else who holds to a traditional view of marriage. 

Listen to the podcast below or read the lightly edited transcript:

Virginia Allen: Last week, all 50 Democrats in the Senate and 12 Republicans voted to start debate on the so-called Respect for Marriage Act. Jay Richards is the director of the Richard and Helen DeVos Center for Life, Religion, and Family and a senior research fellow here at The Heritage Foundation. And he says the bill being considered in the Senate would be more accurately named if it were called the Disrespect for Marriage Act. And Jay Richards joins us now to talk about this. Jay, thanks so much for being here.

Jay Richards: Thank you, Virginia.

Allen: Jay, earlier this year, the House voted on and passed the so-called Respect for Marriage Act.

Richards: Right.

Allen: So now the Senate has agreed to take this bill up. Explain what exactly this act proposes.

Richards: OK. So, essentially, what this does is, people will remember that the Supreme Court in Obergefell in 2015 basically struck down all state laws that define marriage as between one man and one woman. Right? And so there’s this big debate, what is marriage?

Is it an actual thing in the world? Is it a social institution based upon the complimentary nature, male and female, but namely because it takes one male and female to mate and to have and to bear kids and so we recognize as a society an interest in having those kinds of institutions or is it just a contract or relationship between two or more people of whatever composition for romantic reasons? Right? That’s the debate.

And so, essentially, the Supreme Court said, “No, states don’t get to define marriage as natural marriage. They have to sort of allow different sorts of arrangements.” And some states already had that.

But behind this is really that question, whether marriage is a real thing or not, and if it’s a real thing, should the state be able to recognize it as such or not? So we’re in a situation now where the states literally can’t recognize marriage as this institution rooted in our biological natures.

The Respect for Marriage Act would sort of take what was a Supreme Court interpretation of arcane constitutional rules that they discerned and make it the law of the land. So a federal law basically saying, “Look, all states have to recognize this, and they have to recognize marriages defined as marriage in one state in their own states.”

So there’s really, like, if you’re in a so-called same-sex marriage in Massachusetts, if the Respect for Marriage Act is passed and signed by President [Joe] Biden, this makes absolutely no practical difference in your life at all. It does nothing that you don’t already have. So the question is, why are the Democrats and a bunch of Republicans doing this?

Allen: That is the question. And we’re hearing from those who are advocating for the so-called Respect for Marriage Act, their rhetoric is, really, what this does is it codifies same-sex marriage into law. That’s it. Is that accurate?

Richards: No, it does do that, of course. And it’s called the Respect for Marriage Act. And so they know that’s important, but first of all, why would they need to do that? It doesn’t make any sort of practical difference, one, but even, two, if they’re going to do that, we should say, OK, what happened after Obergefell?

Well, what happened after Obergefell is lots of people—Barronelle Stutzman, the florist in Washington state; Masterpiece Cakeshop owner Jack Phillips in Colorado—got badgered and punished legally because they maintained views of natural marriage, in their cases, for religious reasons. So their religious liberty to practice their faith in their work was challenged legally.

So all the way to the Supreme Court, Jack Phillips, he wins. And then, of course, the state recharges him in some other way. And so we already know that’s a problem under Obergefell. So if we’re going to now codify this as a federal law, you’d want the law to be really clear that it provides religious liberty protections.

It doesn’t do that. It has a fake fig leaf amendment that we are told will provide religious liberty protection. What it really does is it provides protection for a priest in a church. So if you’re a priest practicing the sacrament of marriage in a Catholic church, the state’s not going to force you to do a same-sex marriage.

But what if you are a Catholic or an evangelical Christian or a Muslim in your workplace and you’re being forced to participate? Well, there are no protections for that. There are no protections for the Jack Phillips and the Barronelle Stutzmans of the world.

And so what we think is that … the so-called Respect for Marriage Act will just simply lead to more attacks on Americans’ religious liberty. And that’s why we oppose it.

Allen: So churches, just to parse this out a little bit more, churches would still be protected and wouldn’t be forced necessarily to marry same-sex couples.

Richards: That’s right.

Allen: But a business, like, say a pregnancy center—

Richards: A pregnancy center, or so—

Allen: … not protected.

Richards: That’s right. So individuals in normal lines of work or religious organizations that aren’t churches. Right.

So think about adoption agencies—this has already happened. Right? So you have a Catholic adoption agency that wants to place children in homes with a married mother and father. Suddenly they could be in conflict with the law. Right? Violating a same-sex couple’s civil rights under this interpretation as a result of that.

So that’s the problem, is that, OK, fine, of course you’re not going to force the priest in his church to perform a same-sex marriage, but there’s a heck of a lot of other religious free exercise happening in society that would almost certainly be abridged as a result of this law.

Allen: OK. So let’s get back to that question of why, why is this being pushed forward? And let’s add who to that, who is pushing this forward? Are there certain individuals, are there certain groups that are really backing this bill?

Richards: Absolutely. So, of course, the usual suspects, the ACLU, the Human Rights Campaign. So organizations that call it the LGBTQ-plus lobby are of course behind this.

I mean, you can’t say that it’s sort of the advocates for same-sex marriage because they’ve kind of got exactly what they wanted under Obergefell. What’s happened is that we’ve gone from, “OK, it should be allowed,” to, “It should be compelled,” to, “Bake a cake, bigot.” And that’s where we are now.

And so I honestly think that part of this is about spite. It’s about punishing recalcitrant people of conscience and religious belief who simply disagree about this recent move to redefine marriage, which is exactly what it is.

I mean, marriage is a perennial institution that’s existed in every culture at every time and place. It’s always involved a man and a woman. The one variation would probably be polygamy. This was not even a contested question until recently. So suddenly, just because there’s a kind of legal agreement to do this doesn’t mean everyone has to go along. This is about forcing people to sort of surrender their expressions of belief on marriage if they contradict the current orthodoxy. I think, ultimately, that’s really what this is about.

Allen: Oh, and Sen. Mike Lee, he’s weighing in on this pretty heavily. He wrote a letter to his fellow senators about the act, and in the letter he says, “The act gives the Department of Justice the right to sue institutions that oppose same-sex marriage.” Is that accurate?

Richards: That’s exactly right. That is exactly right. So basically, institutions, because the Department of Justice, of course, they can’t go in and do something that’s in the state’s jurisdiction. But when you violate someone’s civil rights, that’s a federal offense. And so the Department of Justice comes in. I mean, it’s designed to do this.

And for people who say, “Well, there are already religious liberty protections,” OK, well, if so, Sen. Lee introduced an amendment with very specific language to protect individuals and organizations in addition to churches and it wasn’t accepted. Right? So if they’re really serious about religious liberty protections, why did they not adopt the Lee amendment?

I think that really exposes the folks on the other side. They’re actually not interested in preserving religious liberty. And the apologists who claim that, the Republicans who’ve at least initially agreed to push this forward for debate, commentators, frankly, like David French who claim it’s fine, at best they’re being extremely naive. And I think I’m perfectly happy being on the record that they’re wrong and that this will get used to violate people’s civil rights or religious rights. And we’ll see it happen in the near future if this becomes law.

Allen: So, Lee also notes that Obergefell did not make a private right of action for aggrieved individuals to sue those who oppose same-sex marriage. But he says this act does.

Richards: That’s right.

Allen: So if this bill passes, can one individual sue another individual?

Richards: That’s right. Exactly.

So take Jack Phillips for an example. So, Masterpiece Cakeshop in Colorado. He’s gotten in trouble because of this Colorado Civil Rights Commission that has gone after him. But it’s not individual customers suing him. Under this it could be individual customers who want to force him to design a cake that, say, for same-sex marriage or it could be something else. And if he doesn’t do that, he could be sued again for violating their civil rights. So he could get in trouble by the Department of Justice and also by individual citizens who could sue him in civil court. So it’s a double whammy.

Allen: Wow. And the amendment that Lee introduced in trying to add those protections, that’s been—

Richards: No, nowhere, at the moment. And so honestly, I think here’s the key thing. I mean, so at the moment we’ve got 12 senators who at least agreed to the vote. So they overcame the filibuster. I’m hoping that some of them will say, “OK, well, I agreed to a vote so there could be a debate on the assumption that there would be good religious liberty protections in the amendment process.” And then if that does not happen, they will not vote for cloture or certainly for the final vote when it comes up for that.

Allen: OK. And who are those Republican senators who, as of right now, appear to be kind of backing this act?

Richards: Yeah. And so, I can tell you the 12 Republican “yes” votes in the kind of initial vote were [Roy] Blunt from Missouri, he’s retiring; [Richard] Burr from North Carolina is retiring; [Shelley] Capito, West Virginia; [Susan] Collins in Maine; [Cynthia] Lummis in Wyoming; … [Lisa] Murkowski in Alaska; … [Rob] Portman in Ohio who’s retiring; and then [Mitt] Romney, [Dan] Sullivan, [Thom] Tillis, [Joni] Ernst, and [Todd] Young.

Allen: OK. And do we know why they are voicing some sort of support for this? Why they appear to be backing it when it seems like it’s very opposed to religious freedom?

Richards: Yeah, for vague reasons. I mean, I honestly think, if I were to play a little mind-reading, is that a lot of Republicans, they don’t think this polls well in their favor, which it probably doesn’t at the moment. They imagine that this will take the marriage debate off the table, so that Republicans do better when we’re talking about other issues. And if we go ahead and surrender on this, then it’ll take the debate off the table. They’re totally wrong. It will not take the debate off the table. It’s just going to radicalize the other side and they’ll move on to the next thing.

Allen: So where does this bill stand right now? When are the next votes? What are we expecting?

Richards: Yeah. And so, I don’t remember. I think the next vote, there’s another one, I think, coming up on Monday. But we’re basically in the processes of debate. There still need to be, I think there need to be a couple of other votes, basically, to actually bring it up so that they can then go to the full Senate for a vote.

And so there are a couple of other opportunities for it to get blocked by filibuster before it gets to the final vote. Because of course, when it gets to the final vote, they won’t even really need the Republicans. So that’s what we’re hoping, that a few Republicans will see the problems that we see in the next few days and will not continue to support it.

Allen: Is there anything that the American people can do to spread awareness and make their senators aware of what’s really in this bill?

Richards: Yeah, absolutely. And so, I go to The Heritage Foundation, we’ve got materials on this. You can look at pieces, actually, at The Daily Signal on it. And if you’re in Missouri, North Carolina, West Virginia, Maine, Wyoming, Alaska, Ohio, Utah, North Carolina, Iowa, Indiana, call your senator and call his or her office and tell them what you think. The more people they hear from, the better.

Allen: Jay, I want to give you just a final word. Anything else that you think the American people really need to know about this bill?

Richards: Absolutely. Whatever your views on same-sex marriage per se, you should oppose this bill if you also believe in robust religious liberty protection and think people ought to be able to express their religious beliefs, not just behind the walls of a church, but in the workplace. If you believe that, you should oppose this bill.

Allen: Jay Richards of The Heritage Foundation. Jay, thank you so much for your time today. We really appreciate it.

Richards: Thank you.

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