A Congressional assault on religious freedom

By Phil Lawler ( bio - articles - email ) | Nov 18, 2022

Some conservative commentators fear that the “Respect for Marriage Act,” which won approval in the US Senate this week, would allow for infringements of religious freedom. They are wrong. The bill does not allow for infringements; it authorizes a frontal assault.

Liberal activists pushed forward this legislation after the Supreme Court, in its Dobbs decision, overturned Roe v. Wade; their goal was to insure against a similar decision that might someday overturn the Obergefell ruling that allows for legal recognition of same-sex marriage. But that rationale is specious. In Dobbs, the Court did not ban abortion; it merely allowed state legislatures to regulate the procedure. In other words it allowed the people of the several states, through their elected representatives, to set their own policies. The thrust of the Respect for Marriage Act is quite the opposite: it is designed to prevent the people from changing policies through the power of the vote.

Supporters of this legislation said that it was overdue, because public support for same-sex marriage is now strong throughout the United States. If they are right—and there is no reason to doubt it—then they have nothing to fear; state legislatures are not likely to resist what the people want and the Supreme Court demands. And if the tide of public opinion turns, a future Congress could repeal this legislation. So the Act seems either unnecessary or purposeless.

But it is not purposeless. The Respect for Marriage Act is designed to suppress any resistance to same-sex marriage.

This Act repeals the Defense of Marriage Act, which was passed in 1996, with overwhelming approval in both houses of Congress, and signed into law by President Clinton. (See how swiftly the tide can turn?) That older bill defined marriage as a union between a man and a woman: a definition that is now declared anathema by the new legislation.

The Defense of Marriage Act passed easily, just a generation ago, because the overwhelming majority of Americans—like the overwhelming majority of all people, in all countries, at all times—understood marriage as a union of man and woman. President Clinton, in signing the bill, unequivocally stated his opposition to legal recognition of same-sex marriage. President Barack Obama took the same stand during his first presidential campaign. But what was understood for millennia has now been rejected.

This year’s legislation carries an Orwellian title. It is no coincidence that the “Respect for Marriage” legislation overthrows the “Defense of Marriage” law. The 1996 law upheld one understanding of marriage; the 2022 legislation demands an entirely different understanding. The “Respect for Marriage Act” certainly does not respect the understanding of marriage that was once nearly universal, and is still firmly held by many millions of Americans.

It would be a mistake to identify those millions simply as Christians. The traditional understanding of marriage has been upheld by Jews, Muslims, Buddhists, Hindus, atheists, humanists, and secularists. But the organized resistance to the dismantling of the institution of marriage has come from religious groups. So in crafting their legislation, the sponsors of the Act tossed a sop to religious institutions. Again using Orwellian language, they insisted that they would respect religious views. The relevant passage of the Act states:

Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.

So Congress is willing to accord “respect” to religious beliefs, and in return asks only that religious institutions and religious believers respect same-sex marriage. But here Congress is actually conceding very little, and asking quite a lot. The legislation will allow us to believe whatever we wish to believe about same-sex marriage; it will not allow us to take any action based on that belief. And the Act promises only “proper” respect for religious beliefs. Any overt resistance could easily be deemed improper.

In effect the Act promises to respect my “belief” about marriage as long as I keep that belief to myself. But that is no concession at all; the government has no way to know what I believe, unless I voice my beliefs. To put it differently, the Act promises to respect my beliefs as long as I respect same-sex marriage. But believing as I do, I cannot recognize same-sex marriage. So the legislation requires me either to renounce my beliefs or maintain my silence.

The Respect for Marriage Act authorizes the Justice Department to bring civil suit against anyone or any institution that resists recognition of same-sex marriage. It also allows individuals to sue institutions that deny them the recognition they seek. So the bill would undoubtedly precipitate suits against religious charities, schools, and even churches themselves, if they did not provide equal treatment for same-sex couples.

Cardinal Timothy Dolan, who now chairs the US bishops’ committee on religious liberty, went to the heart of the matter when he observed that “in any context in which conflicts between religious beliefs and same-sex civil marriage arise, the Act will be used as evidence that religious believers must surrender to the state’s interest in recognizing same-sex civil marriages.”

Stephen Minnis, the president of Benedictine College in Kansas, could also read the handwriting on the wall. He told the Daily Signal that “Catholic institutions will have a tough time living our faith under this legislation… In fact, giving religious institutions a tough time seems to be the point of the legislation.”

In his bleak analysis of the Act, Roger Severino of the Heritage Foundation observes that is could be used against religious institutions that managed charitable works in association with the government, such as adoption agencies, immigration services, or prison ministries. He also warns that—despite the assurances of the bill’s sponsors—it is not absurd to worry that the Act could eventually prompt the IRS to revoke the tax-exempt status of churches. He explains:

When Congress passed the Civil Rights Act of 1964, no one argued that it automatically revoked tax-exempt status for religious schools that engaged in racial discrimination. But the IRS did exactly that six years later and in 1983 the Supreme Court affirmed the action in the case of Bob Jones University v. U.S.

Incredible as it may seem, this wretched legislation won the acquiescence of some influential religious groups, including the National Association of Evangelicals and the Church of Jesus Christ of Latter-Day Saints. The US Conference of Catholic Bishops has held firm, urging opposition to the bill. But who knows how long that resistance will last, or how firm it will be, as liberal ideologues tighten the screws?

Uniting Catholics to resist the onslaught, and defend their religious freedom, will require more effective leadership than our bishops have shown to date—as evidenced by the flocking of Catholics in Congress to support the Act. And organizing that resistance will be made still more difficult as long as orthodox bishops refuse to address the existence of a fifth column within our own ranks.