WASHINGTON — A bill pending in Congress that would codify same-sex civil marriage into federal law is a threat to religious freedom, critics say.
The bill, called the Respect for Marriage Act, would require federal law to recognize marriages “between 2 people” that are “valid in the place where they were entered into” – which includes civil marriage between people of same sex.
The current version of the bill, thanks to an amendment added last week, includes language offering protection to “not-for-profit religious organizations” from participating in the “celebration or celebration” of a same-sex civil marriage.
But opponents, including Cardinal Timothy Dolan, say that is not enough.
“These protections do not solve the main problem of the law: in any context where conflicts between religious beliefs and same-sex civil marriage arise, the law will be used as evidence that religious believers must submit to the state interest in recognizing same-sex sexual civil marriages,” Cardinal Dolan, Archbishop of New York and chairman of the U.S. Bishops Committee on Religious Liberty, said in a written statement.
“Wedding cake bakers, faith-based adoption and foster care providers, religious employers seeking to retain their religious identity, faith-based housing agencies – are all at greater risk of discrimination under this legislation.”
The cardinal called the bill “deeply concerning” and called on senators to “back off.”
Momentum of marriage certificate
Still, the bill appears to be on track to pass. The bill received key approval from the US Senate last week, passing the 60-vote threshold needed to halt debate and proceed to a floor vote. The so-called closure motion passed 62 to 37 on Nov. 16, with support from 48 Democrats, both independents who caucus with Democrats, and 12 Republicans. Nineteen Catholic senators voted for the bill. (One Republican did not vote.) That means the Senate will likely approve the bill.
The House of Representatives passed a different version of the bill on July 19, 267-157. (All 220 Democrats voted in favor, plus 47 Republicans.) If the two chambers agree on a version, they can approve it before the new Congress meets in early January 2023 and send it to President Joe Biden, who supports the bill and says he’ll sign it into law.
Proponents of the measure say it is necessary to protect same-sex civil marriage, which has been legal across the US since June 2015, when the US Supreme Court ruled the US Constitution protected it. In its decision in Oberfell v. Hodgesa 5-4 majority held that same-sex civil marriage is “essential to individual dignity and autonomy” and is therefore one of the “fundamental freedoms” protected by the 14th Amendment, which states that ‘a state cannot’ deprive anyone of life, liberty, or property, without due process of law.
At the time of Oberefell decision, same-sex civil marriage was legal in 16 states, according to state laws and state court decisions.
The legal doctrine relied upon by the United States Supreme Court, known as the “substantive due process,” uses the 14th Amendment as a way to recognize certain freedoms deemed 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 that overturned Roe vs. Wade. He wrote last June that the Supreme Court “should reconsider all substantive due process precedents of this Court,” including Oberefell.
Opponents of the same-sex civil marriage bill in Congress say the court is unlikely to backtrack on the Oberefell decision, since there is currently no legal challenge.
Catholic teaching on marriage
The Catholic Church teaches that God created marriage as a lifelong covenant between a man and a woman to bring them together and have children.
In 2003, the Vatican’s Congregation for the Doctrine of the Faith said, “There is absolutely no reason to view same-sex unions as similar or even remotely analogous to God’s plan for marriage and the family. Marriage is holy, while homosexual acts are against natural moral law.
The same congregation quoted this statement with approval in March 2021, in a document stating that the Church cannot bless same-sex unions.
Nor has the Vatican kept the Church’s teaching on marriage a matter reserved for Catholics.
In 2016, Pope Francis said 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 nationwide referendum asking voters whether marriage is only between a man and a woman.
Religious Freedom Amendment
Supporters of the same-sex civil marriage bill in Congress say the religious freedom amendment added to it last week should allay concerns about religious freedom, but the Catholic Church in the United States is cautious .
“The Respect for Marriage Act upholds the status quo around religious freedom, and the amendment has helped this important bill cross the finish line,” said Rachel Laser, president and CEO of Americans United. for the Separation of Church and State, which supports same-sex marriage, in a written statement to the Register.
Laser called the bill “a vital step in our nation’s march toward freedom without favor and equality without exception” and said it “ensures that we can all live as ourselves and embrace the person we love”.
The religious freedom amendment to the bill has drawn a positive response from several religious groups that define marriage as only between one man and one 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 American bishops, does not find the amendment on religious freedom adequate.
“The Catholic Church will always uphold the unique meaning of marriage as the exclusive and permanent union of one man and one woman. In doing so, we are joined by millions of what Oberefell The Court has called Americans “reasonable and sincere” — both religious and secular — who share this centuries-old understanding of the truth and beauty of marriage,” Dolan said in a written statement late last week. . “The bill is bad news for the many brave, faithless and faithless Americans who continue to believe and defend the truth about marriage in the public square today.”
The bill allows the US Department of Justice and those “aggrieved by a violation” of the law to bring a civil action in federal court.
Opponents of the bill say it includes vague phrases that encourage litigation that would harm defendants even if they ultimately win – a situation known to lawyers as “the process is the punishment”.
One opponent said he found it curious that the bill did not go through public hearings before legislative committees, a common practice for major public policy measures. Had that been the case, he said, the hearings might have alerted members of Congress to what he describes as flaws.
On Nov. 21, Sen. Marco Rubio, R-Fla., filed an amendment to remove the private right of action from the law. According to his website, he “will use every procedural tool available to compel senators to formally run.”
David Trimble, vice president of public policy for the Religious Liberty Institute, which opposes the bill, noted that the bill states: “No person acting under the guise of the law of State cannot deny…full faith and credit to any public act, record, or judicial decision.” procedure … relating to a marriage between 2 people …”
The words “under the guise of state law” bother him, he said; he suggested that they could apply to religious institutions that receive government funds or are closely tied to government policies.
“The use of this expression is ambiguous and dangerous for religious freedom. The criteria for determining who or which organizations are state actors are so broad that they could sweep away any organization that opposes same-sex marriage,” Trimble told the Register via email. “The problem is that it opens the door for religious organizations that support traditional marriage based on religious beliefs to be subject to litigation and significantly higher 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.