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On Marriage, Betrayal

Twelve Republicans voted to recognize a definition of marriage unknown in human history until the cosmic equivalent of yesterday.

Congress Returns To Capitol Hill After Thanksgiving Holiday
(Photo by Drew Angerer/Getty Images)

On Tuesday, the Senate voted to suspend debate on an amended version of the "Respect for Marriage Act." The bill would repeal the Defense of Marriage Act, require states and those acting "under color of law" to recognize other states' marriage licenses, and create a private right of action for “any person who is harmed” by a state's or an organization's failure to recognize their "marriage."

As far as the legal status of homosexual marriage, nothing will change with the bill's passage and eventual signing into law. The Supreme Court's 2015 Obergefell decision already nullified the laws and constitutional amendments of 35 states banning same-sex marriage. Any adult homosexual couple can walk into the county clerk's office and have their union recognized as a marriage by the relevant civil authority.


Rather, the bill is a preemptive measure in the event that the Court overturns Obergefell, an unlikely prospect raised by Clarence Thomas's Dobbs concurrence, in which he asked the Court to reconsider Obergefell and other rulings grounded in substantive due process.

How did the bill pass? The only way it could have proceeded in the narrowly divided, lame-duck Senate was with significant Republican support, and 12 Republicans—members of the "conservative" party—voted to recognize in law a definition of marriage unknown in human history until the cosmic equivalent of yesterday.

Utah Senator Mitt Romney claimed the bill included "important protections for religious liberty." "While I believe in traditional marriage," he said, it was important to signal "that Congress—and I—esteem and love all of our fellow Americans equally."

If redefining marriage demonstrates his "esteem and love" for his "fellow Americans," how can he justify even a private belief in traditional marriage?

And what about those "protections" for religious liberty? The bill concedes that "reasonable and sincere people" hold "[d]iverse beliefs about the role of gender in marriage," as if the consensus of civilizations immemorial is just one belief among many. Another section precludes the bill from being "construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law." The bill also exempts "nonprofit religious organizations" who refuse "to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage" from the cause-of-action clause.


But the real ballgame is not whether churches have the right to define and celebrate marriages in accord with their faith traditions. It's whether church-supported nonprofits, making use of state or federal funds, have the ability to operate "under color of law" according to their moral principles—whether, for instance, Catholic adoption agencies can adhere to Catholic principles and retain their tax-exempt status.

Senator Mike Lee, foreseeing this possibility, tried to introduce an amendment ensuring the bill would not be construed to threaten religious nonprofits' tax-exempt status. It fell 12 votes short. That 49 senators voted against a measure that would have prevented the government from taking "discriminatory action" against people who believe in traditional marriage shows you the endgame.

You can also tell by the way the Respect for Marriage Act has been framed by its supporters. Senators Tammy Baldwin, Kyrsten Sinema, and three of their Republican colleagues called the bill "a needed step to provide millions of loving couples in same-sex and interracial marriages the certainty that they will continue to enjoy the freedoms, rights, and responsibilities afforded to all other marriages."

The senators link interracial and same-sex marriage, and by extension, the opponents of interracial and same-sex marriage. The Supreme Court in the past has allowed the federal government to revoke the tax-exempt status of organizations that oppose interracial marriage on the grounds that racial integration is an "overriding government interest" that cannot be overcome by religious-freedom claims. For at least some of the senators who supported this bill, that is precisely what they want to see happen to proponents of traditional marriage.

The Obama administration at least countenanced revoking the tax-exempt status of traditionalist organizations. In the oral arguments of Obergefell, Justice Alito asked then-Solicitor General Donald Verrilli whether organizations that fail to recognize homosexual marriage would lose their tax-exempt status, a lá Bob Jones University, the school that infamously opposed miscegenation. Verrilli ominously said the question of tax-exempt status was "certainly going to be an issue."

While this legislation doesn't repeal the Religious Freedom Restoration Act, it takes a step toward the left's ultimate goal of revoking religious organizations' nonprofit status by creating a right-of-action against those acting "under color of law" who fail to recognize same-sex marriages. That provision—supported by 12 nominal allies of traditionalist Americans in the U.S. Senate—gives fuel to the activists who have spent the years after Obergefell suing private citizens, religious charities, and other nonprofit organizations, and want desperately for religious people to affirm their conduct.

That is the activists' aim, and if you doubt it, look at their harassment of Jack Phillips. There are hundreds of bakers in Colorado. There are dozens within a small radius of Phillips's bakery. They still insist upon making this particular baker violate his conscience and approve of their relationships and behaviors. I wouldn't suggest that it's because, deep down, a part of them feels as Phillips does. But if not that, what?