The Respect for Marriage Act Is a Win for Equality | Opinion

Today, a bipartisan majority in the Senate advanced the Respect for Marriage Act, which enshrines equal recognition for gay marriage into federal law. It's a largely symbolic move, only truly relevant in the unlikely scenario that the Supreme Court were to reverse its decision that established marriage equality as the law of the land.

The bill's probable passage mostly serves to ease some people's worries—and Democrats' campaign warnings—that the Supreme Court is going to overturn gay marriage after it reversed Roe v. Wade, which ratified a woman's right to an abortion.

Passage of the Respect for Marriage Act should be a relatively uncontroversial development; after all, even a majority of Republicans now support gay marriage. Yet in some corners of the political Right, critics are still digging their heels in and viciously opposing the bill, pushing alarmist arguments about how it supposedly "endangers religious liberty."

For example, the socially-conservative Heritage Foundation has called the bill "unnecessary and harmful." Heritage's vice president of domestic policy, Roger Severino, says that the legislation "declare[s] open season on people of faith," "threaten[s] to empower woke activists inside and outside of government to attack people of faith," and "provides no benefit or protection that same-sex couples don't already have."

Republican Congressman Chip Roy similarly claimed that the legislation "threaten[s] the charity status of faith based adoption and foster-care agencies" and "villainize[s] millions of Americans for their religious beliefs."

These arguments are utterly unfounded in reality. But given the grave importance of religious liberty in a free society, it's worth taking them seriously to explain why, when you look beneath the surface, there's not a whole lot there there.

The law's critics aren't exactly wrong that it doesn't provide any new benefit to gay couples. That's true! But it does serve to take away the uncertainty gay people felt after Justice Clarence Thomas hinted at his desire to possibly revisit the Supreme Court's gay marriage ruling. Ironically enough, it also addresses one of the main criticisms that conservatives, including the Heritage Foundation, had of the Supreme Court's decision: that it was judicial activism usurping the democratic process that should've been left to lawmakers.

Well, now lawmakers are actually doing their jobs. So, shouldn't constitutional conservatives be happy with that, rather than decry it as redundant?

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Supporters of gay marriage wave the rainbow flag after the U.S. Supreme Court ruled that the U.S. Constitution provided same-sex couples the right to marry, at the Supreme Court in Washington, D.C., on June 26, 2015. Joshua Roberts/Reuters

Their main claim focuses on the supposed threat this legislation poses to religious Americans who personally disagree with gay marriage. Yet this criticism is undercut by their first one: How can the bill simultaneously change nothing and pose a new threat?

Thankfully, Republican senators involved in this process have added amendments that explicitly protect religious liberty. GOP Senators Thom Tillis and Rob Portman drafted amendments that explicitly ensure that the bill does not do anything to "diminish or repeal" any of the current federal protections for religious freedom, like the Religious Freedom Restoration Act.

Their amendment also explicitly ensures that nonprofit religious organizations will not be forced "to provide any services, facilities, or goods for the solemnization or celebration of a marriage" and that the eligibility of nonprofits for tax-exempt status would not be affected by this legislation.

So there's really no substance behind the claim that this legislation somehow targets or demonizes religious Americans. In fact, it explicitly includes language recognizing the good-faith differences in views and values that Americans have on these issues, and is very explicit not to undermine any federal religious protections. It only requires the government—both federal and state—to recognize marriages equally. The claim that it endangers tax-exempt status is also not based in anything actually in the legislation text.

The only area where critics have anything to go on is when they point out that the bill's religious liberty protections don't apply to people like the famous Christian baker, Jack Phillips, who was taken to court when he wouldn't bake a custom cake for a same-sex wedding. (And whose rights I have defended in the past.)

That's actually true, as the bill's protection provisions apply to nonprofit organizations but not for-profit businesses. But the Respect for Marriage Act also does nothing to change or undercut the religious liberty of people like Jack Phillips, who successfully won at the Supreme Court on First Amendment grounds.

Indeed, National Review's Jack McCormack, who laid out this critique, admits as much, writing that it "maintains a status quo." So, all critics can truly say is that it doesn't expand protections to these types of individuals.

You don't have to take my word for it that the Respect for Marriage Act doesn't endanger religious freedom. The Church of Jesus Christ of Latter-day Saints, formerly known as the Mormon Church, just came out and endorsed the legislation, alongside a slew of other religious organizations that do not personally believe in gay marriage but still support equality under the law. They surely wouldn't sign on to something that "declared open season on people of faith."

The Respect for Marriage Act is a win for equality that removes the instability worrying countless married gay Americans right now. And it does so without endangering the rights of religious Americans in any meaningful way.

Hopefully, its passage will help us move on from the divisive fight over this issue and let both sides live out their values in peace.

Brad Polumbo (@Brad_Polumbo) is a libertarian-conservative journalist and the co-founder of BASEDPolitics.

The views expressed in this article are the writer's own.