WASHINGTON — A bill making its way through Congress that would codify same-sex civil marriage into federal law is a threat to religious liberty, critics say.
The bill, called the Respect for Marriage Law, would require federal law to recognize marriages “between 2 people” that are “valid in the place where they were performed,” including same-sex civil marriage.
The current version of the bill, thanks to an amendment added last week, includes language that offers protection for “religious non-profit organizations” not to participate in “the solemnization or celebration” of a civil marriage between persons of the same sex.
But opponents, including Cardinal Timothy Dolan, say that’s not enough.
“Those protections fail to resolve the main problem of the Act: in any context where conflicts arise between religious beliefs and same-sex civil marriage, the Act will be used as evidence that religious believers must surrender to the interest of the State to recognize persons of the same sex. civil sexual marriages,” Cardinal Dolan, the archbishop of New York and chair of the US bishops’ Committee on Religious Liberty, said in a written statement.
“Wedding cake bakers, faith-based foster care and adoption providers, religious employers seeking to maintain their religious identity, faith-based housing agencies, are at increased risk of discrimination under this legislation. ”.
The cardinal called the bill “deeply concerning” and called on senators to “reverse course.”
Promotion of the marriage law
However, the bill appears to be on a smooth path to passage. The bill won key support from the US Senate last week, passing the 60-vote threshold needed to halt debate and proceed to a full vote. The so-called closure motion passed 62-37 on November 16, with the support of all 48 Democrats, both independents who sided with Democrats, and 12 Republicans. Nineteen Catholic senators voted in favor of the bill. (A Republican did not vote.) That means the Senate will likely pass the bill.
The House of Representatives passed a different version of the bill on July 19, 267-157. (All 220 Democrats voted yes, plus 47 Republicans.) If the two houses agree on a version, they can pass it before the new Congress convenes in early January 2023 and send it to President Joe Biden, who supports the bill and says he will sign it into law.
Supporters of the measure say it is necessary to protect same-sex civil marriage, which has been legal throughout the United States since June 2015, when the US Supreme Court ruled that the US Constitution. protects him. In his decision in Obergefell vs. Hodgesa 5-4 majority found same-sex civil marriage to be “central to individual dignity and autonomy” and is therefore one of the “fundamental freedoms” protected by the 14th Amendment, which says that a state may not “deprive any person of life, liberty, or property, without due process of law.”
At the time of the Obergefell decision, same-sex civil marriage was legal in 16 states, derived from state statutes and state court decisions.
The legal doctrine on which the US Supreme Court relied, known as “substantive due process,” uses the 14th Amendment as a way to recognize certain freedoms considered fundamental but not mentioned in the Constitution.
Justice Clarence Thomas expressed his opposition to the doctrine, in his concurring opinion in the Dobbs abortion case he overturned Roe vs. Wade. He wrote last June that the Supreme Court “should reconsider all of this Court’s substantive due process precedents,” including Obergefell.
Opponents of the same-sex civil marriage bill in Congress say the court is unlikely to reexamine the Obergefell decision, since there are currently no legal challenges to it.
Catholic teaching on marriage
The Catholic Church teaches that God created marriage as a lifelong covenant between a man and a woman to unite them as one and have children.
In 2003, the Vatican’s Congregation for the Doctrine of the Faith stated: “There is absolutely no basis for considering homosexual unions to be in any way similar or remotely analogous to God’s plan for marriage and the family. Marriage is holy, while homosexual acts go against the natural moral law.
The same congregation cited that statement with approval in March 2021, in a document stating that the Church cannot bless same-sex unions.
The Vatican has also not upheld the Church’s teaching on marriage as a matter exclusively for Catholics.
In 2016, Pope Francis stated in his Apostolic Exhortation Amoris Laetitia (The Joy of Love) that “same-sex unions… cannot simply be equated with marriage.”
In February 2015, Pope Francis praised the “efforts” of the Catholic Church in Slovakia “in defense of the family,” three days before a national referendum that asked voters whether marriage is only between a man and a woman. .
religious liberty amendment
Supporters of the same-sex civil marriage bill in Congress say the religious liberty amendment added to it last week should allay concerns about religious liberty, but the Catholic Church in the U.S. she is cautious.
“The Respect Marriage Act maintains the status quo around religious liberty, and the amendment helped get this important bill across the finish line,” said Rachel Laser, president and CEO of Americans United for Separation. the Church and the State, which supports the same. sexual marriage, in a written statement to the Registry.
Laser called the bill “a vital step in our nation’s march toward freedom without favoritism and equality without exception” and said that it “ensures that we can all live as ourselves and marry the one we love.”
The religious liberty amendment to the bill sparked a positive reaction from several religious groups that define marriage as between a man and a woman, including the Church of Jesus Christ of Latter-day Saints, the Seventh-day Adventist Church in North America, and the National Association of Evangelicals.
However, Cardinal Dolan, on behalf of the US bishops, does not find the religious liberty amendment adequate.
“The Catholic Church will always uphold the unique meaning of marriage as an exclusive, lifelong union of one man and one woman. In doing so, we are joined by millions of what the Obergefell The court found ‘reasonable and sincere’ Americans, both religious and secular, who share this traditional understanding of the truth and beauty of marriage,” Dolan said in a written statement late last week. “The bill is a bad deal for the many brave Americans of faith and faithless who continue to believe and defend the truth about marriage in the public square today.”
The bill allows the US Department of Justice and individuals “injured by a violation” of the law to file a civil lawsuit in federal court.
Opponents of the bill say it includes vague language encouraging litigation that would hurt defendants even if they end up winning, a situation known among lawyers as “process is punishment.”
One opponent said he finds it curious that the bill has not gone through public hearings before legislative committees, a common practice for major public policy measures. If he had, he said, the hearings might have alerted members of Congress to what he describes as his failings.
On November 21, Senator Marco Rubio, Republican of Florida, introduced an amendment to remove the private right of action from the law. According to his website, he “will use all available procedural tools to compel senators to register.”
David Trimble, vice president for public policy at the Religious Liberty Institute, which opposes the bill, noted that the bill states: “No person acting under state law may deny…full faith and credit to any act public record or judicial statement. process… relating to a marriage between 2 people…”
The words “under the color of state law” bother him, he said; he suggested that they could apply to religious institutions that receive government funding or are closely related to government policies.
“The use of that phrase is ambiguous and dangerous for religious freedom. The criteria for determining who or which organizations are state actors are so broad that they could kill off any organization that disagrees with same-sex marriage,” Trimble told the Register by email. “The problem is that it opens the door wide for religious organizations that support traditional marriage based on religious convictions to be subject to litigation and significantly increased risk of liability. Even if they win, they will have faced potentially ruinous costs and a government-imposed burden on the free exercise of their faith.”