Respect For Marriage Act: An Imprudent Compromise
That's Sen. Mike Lee above, speaking out here against the Respect For Marriage Act. I have put off writing about the proposed Respect For Marriage Act, only because I needed to study its provisions. David French is for it, saying that it is a fair compromise between the rights of gays and lesbians, and the religious liberties of people who do not recognize same-sex marriage in a religious sense. I dissent from French's views on some issues, but he's usually a solid defender of religious liberty, so if he says the RFMA is legitimate, I take it seriously.
What's more, I recognize that our side -- social and religious conservatives -- have lost this battle in the culture war. There is no realistic chance that Obergefell will be overturned in the foreseeable future, and if it were, it would take the states about five minutes to legislatively create same-sex marriage. Why? Because same-sex marriage is quite popular, even among many conservative voters. If Obergefell were overturned, all that would do is send the issue to state legislatures. The reason SSM is so popular is the reason I identified as far back as 2005, when the Federal Marriage Amendment failed to get out of the GOP-controlled Senate: gay marriage fits well within what most Americans today think marriage is. That is, most Americans, religious and otherwise, think that marriage is essentially the formalization of the emotional commitment two people (well, two people for now) have for each other. It is not rooted in anything transcendent, at least not objectively; if a couple wishes to involve God in it, that's their choice, but it's not what marriage essentially is. Mind you, I don't believe that, and neither do many traditional Christians, Jews, and Muslims. But that's what most Americans believe. It was not hard to marriage-rights activists to point out to a meaningful number of Americans in those pre-Obergefell days that their opposition to gay marriage was based in irrational prejudice, because so many Americans had forgotten what marriage is.
Given that this battle is over, and given that younger Americans are not only far less religious, and far less tolerant of religious liberty, it is at least plausible to think that religious and social conservatives should take the best deal they can now, because it's only going to get worse for us. That's why I don't dismiss French's argument out of hand: for reasons of political prudence, not because I accept same-sex marriage morally.
On the other hand, others whose opinions I respect -- like Kristen Waggoner, the head of Alliance Defending Freedom, and a personal friend of French's -- say that the RFMA is a mistake. Greg Baylor authored ADF's opinion. Excerpts:
The so-called Respect for Marriage Act is a misnamed bill that expands not only what marriage means, but also who can be sued for disagreeing with the new meaning of marriage.
While proponents of the bill claim that it simply codifies the 2015 Obergefell decision, in reality it is an intentional attack on the religious freedom of millions of Americans with sincerely held beliefs about marriage.
The Respect for Marriage Act threatens religious freedom and the institution of marriage in multiple ways:
It further embeds a false definition of marriage in the American legal fabric.
It opens the door to federal recognition of polygamous relationships.
It jeopardizes the tax-exempt status of nonprofits that exercise their belief that marriage is the union of one man and one woman.
It endangers faith-based social-service organizations by threatening litigation and liability risk if they follow their views on marriage when working with the government.
The truth is the Respect for Marriage Act does nothing to change the status of same-sex marriage or the benefits afforded to same-sex couples following Obergefell. It does much, however, to endanger religious freedom.
The flimsiness of the RFMA’s religious liberty “protections” is made worse by the bill’s utter failure to address the real and serious problems religious Americans face in the wake of Obergefell.
Right now, government officials across the country—including the Biden administration—argue in court that individuals and religious organizations who love and work with people from all walks of life should face civil and criminal penalties if they don’t abandon their beliefs on this issue. Faith-based adoption and foster placement agencies are denied the opportunity to serve needy children. States deny parents equal support if they choose religious schools with the “wrong” views on marriage. Governments force gospel rescue missions to hire people who deny the gospel.
The RFMA addresses none of this. It instead fuels hostility towards Americans who hold beliefs about marriage rooted in honorable or philosophical premises.
It imposes a new obligation to recognize same-sex relationships on religious organizations that work closely with government. It creates new tools for progressive activists and the Department of Justice to enforce that obligation. It gives the Internal Revenue Service a new argument for taking tax-exempt status away from religious non-profits. It makes religious freedom and free speech cases harder to win by elevating the federal government’s interest in same-sex marriage.
And for what? The bill provides no protection or benefits that same-sex couples don’t already have. The Supreme Court assured the country in the Dobbs decision (overruling Roe v. Wade) that it has no intention of overruling the Obergefell decision establishing a right to same-sex marriage. No state is trying to get the Supreme Court to reconsider its ruling.
I heard from a reader who is an experienced senior lawyer, who said that the RFMA:
omits ALL the relevant faith-based ministry categories that will be litigated this decade: adoption agencies, K-12 schools, colleges, religious employers, Title VI Religious Employer Exception, Title IX gender-specific facilities: dormitories, bathrooms, athletics.
Rep. Chip Roy and Ryan T. Anderson are also against the RFMA, saying in part:
The Senate bill pays lip service to religious liberty and conscience rights, but it does not offer any meaningful protections for those rights. Had the Senate sponsors wanted to, they could have explicitly stated that no individual or organization could be penalized by the government for operating according to the conviction that marriage unites husband and wife – particularly that the IRS may not strip any such organization of its nonprofit status.
But the bill offers no such protections. It is not a compromise, not even a bad compromise. It enshrines a false definition of marriage in our law and then tells people they can have their day in court if and when they get sued. That's not public policy for the common good.
Roy and Anderson write that no Senator should vote to redefine what marriage is. I agree with that in principle -- I do not believe that same-sex marriage is marriage -- but I would still vote for a compromise as a prudential matter, if it gave rock-solid protection to religious dissenters. Based on my reading, the Senate version of the RFMA does not. Why didn't the twelve Republicans who joined the Democrats to vote for the bill last week not insist on the provision that Roy and Anderson suggest above? What, exactly, did the Republicans get out of their compromise?
One of the most perplexing marks of our time is the defection of so many “conservatives” from the cause of conserving what Russell Kirk called “the permanent things.” If marriage is not conserved—if civil marriage is not conserved as a man-woman union—then nothing genuinely conservative can last, at least for long. Support for the Respect for Marriage Act is bad enough. The way David French frames his argument is worse. This is how conservatism dies, and this is how marriage is surrendered.
I would like to affirm what Mohler says here, but that horse left the barn over a decade ago. The time for Republicans to have fought was twenty years ago, at the latest. They didn't do it. Some did, but most did not. Remember, the Federal Marriage Amendment, which would have written into the Constitution a definition of marriage as one man and one woman, exclusively, could not get out of a GOP-controlled Senate in 2005, even when an Evangelical GOP president had just been re-elected. George W. Bush paid lip service to the FMA after he had secured the votes of religious conservatives, saving his political capital to spend on his failed attempt to privatize Social Security. Sen. John McCain helped lead the GOP effort to kill the FMA. Most elite Republicans have never given a damn about conserving traditional marriage. I have said many times in this space that when I talked to influential GOP staffers from both sides of the Hill in the immediate wake of Obergefell, asking them what the Congressional party was planning to do to shore up religious liberty protection in the post-Obergefell environment, they said ... nothing. That is, there were no plans. None. Even someone as cynical as I am about the Republican Party was shocked by that.
So, if Al Mohler is right, and all of conservatism depends on conserving traditional marriage, then conservatism is already dead. I might be misreading my friend Al Mohler here, but that paragraph seems to indicate that he believes there is something yet to be saved in this post-Christian culture. The fight for marriage is so 2014; we are now far past that, onto trying to defend the standard definition of male and female. And the Republican Party, broadly speaking, is just as useless there as it was on defending marriage. On culture war issues, the Republicans are useful only for slowing down what the Democrats want to do. I don't get it. They're about as bad as the Tories in Great Britain. I wish I could say that the churches were a powerful exception to this, but as a general matter, they aren't. The best lack all conviction/And the worst are full of passionate intensity.
If I were a Senator, I would oppose the bill as not going nearly far enough to protect religious liberty, but I would nevertheless be willing to vote for a version of the RFMA that did. I would do so not because I believe that same-sex marriage is really marriage. I would do it because my priority would be to defend religious institutions and individuals from legal attack within a decadent society that is destroying itself. This, I think, is the difference between Benedict Option conservatives and more conventional religious conservatives: Ben Op conservatives have no illusions that traditional marriage can be saved in a culture that has forgotten God, and instead of trying to shore up that culture, are committed to doing whatever is possible to protect families, churches, schools, and cultural institutions within which knowledge of the truth can be preserved during the collapse underway, and to come.
I would genuinely like to know why conservative Christians who think the Benedict Option is too negative believe that traditional marriage can still be saved through legislative action. I'm not kidding. We know that same-sex marriage is widely popular now. That's not going away -- and hostility to religious believers and anyone who dissents from LGBT rights is going to get much worse. Look at political scientist Eric Kaufmann's findings on the beliefs of Generation Z. Excerpts:
Cultural liberalism is the belief that individuals and groups should have the freedom to express themselves, should not be compelled to endorse beliefs that they oppose, and should be treated equally by social norms and the law.
Cultural socialism is the idea that public policy should be used to redistribute wealth, power, and self-esteem from the privileged groups in society to disadvantaged groups, especially racial and sexual minorities, and women. This justifies restrictions on the freedom and equal treatment of members of advantaged groups.
The young are predominantly "cultural socialists," using Kaufmann's definition. More:
[Y]ounger people are substantially more likely to support progressive illiberalism than older Americans, even when controlling for their political ideology. This suggests that the problem is likely to grow, not subside, as today’s college graduates enter large organizations.
We conservatives have to prepare ourselves for this future. Ed West, who is British, writes about the situation in his country, in a column about the pro-LGBT attacks on Qatar:
My experience is that, outside of religious publications, many younger people in the media are not even hostile to religion; they don’t really even understand what it is. They don’t know the most basic facts about Christianity, even the bits which are central to any understanding of our culture and history, and they wouldn’t really understand why someone would think it so important; they certainly wouldn’t know about its deep history in the Middle East.
While religion is some wacky personal interest, sexuality is a sacred part of our humanity, which explains the Western media’s strength and confidence in arguing for LGBT rights, and the whispers, crickets and tumbleweed over religious persecution.
The United States is more religious than the UK, even among the young -- but we Americans are moving strongly in the same direction as Britain. Seven years ago, just before Obergefell, I published this piece based on my discussion with the pseudonymous "Prof. Kingsfield," a closeted Christian at a top US law school. He told me back then:
“Alasdair Macintyre is right,” he said. “It’s like a nuclear bomb went off, but in slow motion.” What he meant by this is that our culture has lost the ability to reason together, because too many of us want and believe radically incompatible things.
But only one side has the power. When I asked Kingsfield what most people outside elite legal and academic circles don’t understand about the way elites think, he said “there’s this radical incomprehension of religion.”
“They think religion is all about being happy-clappy and nice, or should be, so they don’t see any legitimate grounds for the clash,” he said. “They make so many errors, but they don’t want to listen.”
To elites in his circles, Kingsfield continued, “at best religion is something consenting adult should do behind closed doors. They don’t really understand that there’s a link between Sister Helen Prejean’s faith and the work she does on the death penalty. There’s a lot of looking down on flyover country, one middle America.
“The sad thing,” he said, “is that the old ways of aspiring to truth, seeing all knowledge as part of learning about the nature of reality, they don’t hold. It’s all about power. They’ve got cultural power, and think they should use it for good, but their idea of good is not anchored in anything. They’ve got a lot of power in courts and in politics and in education. Their job is to challenge people to think critically, but thinking critically means thinking like them. They really do think that they know so much more than anybody did before, and there is no point in listening to anybody else, because they have all the answers, and believe that they are good.”
On the conservative side, said Kingsfield, Republican politicians are abysmal at making a public case for why religious liberty is fundamental to American life.
“The fact that Mike Pence can’t articulate it, and Asa Hutchinson doesn’t care and can’t articulate it, is shocking,” Kingsfield said. “Huckabee gets it and Santorum gets it, but they’re marginal figures. Why can’t Republicans articulate this? We don’t have anybody who gets it and who can unite us. Barring that, the craven business community will drag the Republican Party along wherever the culture is leading, and lawyers, academics, and media will cheer because they can’t imagine that they might be wrong about any of it.”
Kingsfield said that the core of the controversy, both legally and culturally, is the Supreme Court’s majority opinion in Planned Parenthood vs. Casey (1992), specifically the (in)famous line, authored by Justice Kennedy, that at the core of liberty is “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As many have pointed out — and as Macintyre well understood — this “sweet mystery of life” principle (as Justice Scalia scornfully characterized it) kicks the supporting struts out from under the rule of law, and makes it impossible to resolve rival moral visions except by imposition of power.
“Autonomous self-definition is at the root of all this,” Prof. Kingsfield said. We are now at the point, he said, at which it is legitimate to ask if sexual autonomy is more important than the First Amendment.
The implications of the past week for small-o orthodox Christians — that is, those who hold to traditional Christian teaching on homosexuality and the nature of marriage — are broad. There is the legal dimension, and there is a cultural dimension, which Kingsfield sees (rightly, I think) as far more important.
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On the political side, Kingsfield said it’s important to “surrender political hope” — that is, that things can be solved through political power. Republicans can be counted on to block the worst of what the Democrats attempt – which is a pretty weak thing to rely on, but it’s not nothing. “But a lot of things can be done by administrative order,” he said. “I’m really worried about that.”
And on the cultural front? Cultural pressure is going to radically reduce orthodox Christian numbers in the years go come. The meaning of what it means to be a faithful Christian is going to come under intense fire, Kingsfield said, not only from outside the churches, but from within. There will be serious stigma attached to standing up for orthodox teaching on homosexuality.
“And if the bishops are like these Indiana bishops [who at the time kept their mouths shut and refused to defend the Indiana RFRA -- RD], where does that leave us?” he said. “We have a problem in the current generation, but what I really worry about is what it means to transmit the faith to the next generation.”
“A lot of us will be able to ‘pass’ if we keep our mouths shut, but it’s going to be hard to tell who believes what,” Kingsfield said. “In [my area], there’s a kind of secret handshake that traditional Christians use to identify ourselves to each other when we meet. Forming those subterranean, catacomb church networks is not easy, but it’s terribly vital right now.”
That was seven years ago. The culture has accelerated since then. All the momentum is with the LGBT radicals and Kaufmann's "cultural socialists." We conservatives don't have many political leaders who are willing and able to articulate a defense of man and woman, much less of marriage. It's a hell of a place to be in. Who are our religious leaders willing and able to do the same thing in a compelling and convincing way? When I was in Poland briefly over the weekend, in conversation with Catholics there, they had the same complaint about the clergy: they've lost passion and conviction, and are just operating like automatons. One young Catholic woman was raving about Matt Walsh's movie What Is A Woman?, saying that it did more to educate and inform people about the gender ideology situation than anything said by her country's priests and bishops. Same is pretty much true here in America, isn't it?
I've gotten away from the question about the RFMA, but all of this cultural stuff is truly relevant to it. With some notable exceptions, Republican lawmakers have long been weak sisters about the marriage issue. They are now playing a weak hand. They have to make their political decisions recognizing the social and cultural realities of contemporary America, a country where a majority of young people prize sexual autonomy more than religious liberty, and who love gay more than God. That's not likely to get any better, and is in fact likely to get far worse. What then? I don't identify with David French's eagerness to compromise, and I would draw the lines of compromise in different places ... but French seems to understand the shaky ground on which Christian trads stand better than a lot of people who are right about marriage do. The Qatar controversy is one of those things that show which values that Western elites -- and not only elites -- consider to be sacred, and which values they don't. We religious conservatives are not winning.