Heritage’s Roger Severino On Redefining Marriage
Roger Severino, the Heritage Foundation’s Vice President for Domestic Policy, is circulating a letter explaining why proponents of the Democrats’ bill to redefine marriage have got it wrong, and the damage such legislation will do to religious liberty and our rights supposedly guaranteed by the First Amendment.
You can read and download the letter through this link, but we’ve pulled some key points to help you with your “elevator speech” to family and friends to alert them to the threat of this ill-conceived bill.
And, as Mr. Severino says, whatever the motivation for supporting this bill, the arguments raised must ultimately be judged on their own merits and they demand a thoughtful and serious response.
First Key Point: Proponents claim because the bill’s findings characterize beliefs in man-woman marriage as being worthy of respect, it provides religious institutions legally significant protections against being treated by government as the equivalent of bigots.
Response: False. First, the issue is not the ability to believe in man-woman marriage, but the ability to live out those beliefs in meaningfully in society and not be labelled a bigot by the government for doing so. Respect for mere beliefs in man-woman marriage gets people of faith little in this context. But more fundamentally, the bill doesn’t even go that far. It reads:
“Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.”
Here is an accurate translation: “Diverse but wholly unspecified beliefs about the role of gender in marriage (whatever that means) are held by acceptable people based on acceptable premises. Therefore, such acceptable people who hold acceptable beliefs about marriage are due an acceptable level of respect.”
It is hard to imagine crafting a more legally meaningless statement than that. The bill’s sponsors took great pains to avoid saying precisely what the bill’s defenders erroneously claim. Nowhere in the bill does conjugal marriage, traditional marriage, biological marriage, Biblical marriage, natural marriage, historical marriage, husband-wife marriage, man-woman marriage, or any possible variation appear in the bill. Yet the bill does say some things quite clearly and explicitly—namely, “same-sex couples . . . . deserve to have the dignity, stability, and ongoing protection that marriage affords to families and children.” Now a statement like that does some real legal work, but in precisely the opposite direction.
Second Key Point: Proponents claim the bill cannot be used a basis for the IRS to deny the tax-exempt status of religious organizations that adhere to and act upon their beliefs in man-woman marriage.
Response: False. While the bill clarifies through a rule of construction that it does not, by its own operation, revoke tax-exempt status for dissenting religious organizations, it gives ample grounds for the IRS and any other tax authority to do the actual dirty work. When Congress passed the Civil Rights Act of 1964, no one argued that it automatically revoked tax-exempt status for religious schools that engaged in racial discrimination. But the IRS did exactly that six years later and the Supreme Court affirmed the action In the Bob Jones case by relying on the fact that Congress established a “national” or “fundamental” policy against race discrimination through the Civil Rights Act following the Brown v. Board decision. Congress could have added the exact same rule of construction in the RFMA to the Civil Rights Act of 1964 and it would not have prevented the IRS’s tax-revocation because the governmental interest in eradicating racial discrimination would have been deemed to be just as compelling.
Even President Obama’s top lawyer at the Department of Justice admitted to the Supreme Court during the Obergefell argument that tax-revocation of religious organizations that hold fast to man-woman marriage was “going to be an issue.” No rule of construction under the bill will make this issue go away, but an affirmative defense, such as under Senator Lee’s First Amendment Defense Act, would. The bill’s sponsors can easily add a clause saying: “No federal, state, or local taxing authority shall revoke any tax-exempt status or tax benefit of any non-profit organization because it believes or acts on the belief that marriage is the union of one man and one woman.” This simple protection would take the tax issue entirely off the table, which is precisely why the bill’s sponsors steadfastly refuse to adopt it.
Third Key Point: Proponents claim RFMA provides additional protections for explicitly religious organizations to decline to participate in same-sex marriage celebrations and bars activist lawsuits on this question.
Response: True but largely irrelevant. If the First Amendment means anything, it means that government is barred from ordering a house of worship to solemnize or celebrate a same-sex marriage within their chapel, church, synagogue, or mosque. Such lawsuits would readily lose and any subsequent attempts to relitigate the question would eventually lead to sanctioning of lawyers for filing frivolous lawsuits. While the bill may provide some explicitly religious nonprofits additional clarity outside of the house of worship context, few if any religious social service organizations would benefit, including adoption agencies and marriage counseling organizations, because they do not have anything at all to do with wedding solemnization itself (which is the only thing ostensibly protected by the bill). This explains why controversies and lawsuits over same-sex marriage celebrations have centered around bakers, photographers, web designers, printers, meeting halls, bed and breakfasts, and florists—with decidedly mixed success for people of faith. These documented and repeated examples of people of faith being harassed and driven out of business today over forced same-sex marriage celebrations get no protected at all under the bill.
Mr. Severino’s conclusion is Christians, Muslims, and Jews with sincere, historic, reasonable (and true!) beliefs about human sexual morality and identity have been under accelerated attack by activists and government post Obergefell, despite scolding assurances by same-sex marriage advocates that a “live and let live” world would follow that decision. The RFMA would supercharge these attacks and the gestures towards religious liberty in the most recent version of the bill do not change this fact. Under the present circumstances, one can’t blame people of faith for calling a wolf, a wolf, no matter how much wool clothing it wears.
We urge CHQ readers and friends to download the letter through this link and distribute copies to your church and family members over the Thanksgiving holiday. Tell them we still have an opportunity to defeat this destructive legislation, but only if they act now by calling Senators at (202) 224-3121 to demand they vote NO on final passage of the grossly misnamed “Respect for Marriage Act.”