“They will still be subject to years, and sometimes decades, of government discrimination, harassment, and litigation.”
Let’s get this out of the way. Regardless of what you think about gay rights, Obergefell v. Hodges was legally illegitimate in the same way that Roe v. Wade. It was another case of a Supreme Court majority dictating its cultural preferences under the color of the law. Unlike Roe v. Wade, there isn’t a significant lobbying campaign to reverse it worth mentioning. Opponents of abortion continued their fight for generations. There is no evidence that opponents of gay marriage have that kind of political resistance, organization, or movement. Simply put, there is no reason to push for the repeal of the Defense of Marriage Act, which is what HR 8404, misleadingly called the Respect for Marriage Act, does.
The left claims that after the Dobbs decision, there is an urgent need to codify Obergefell into law so that the Supreme Court doesn’t wake up tomorrow and wipe it off the map. That’s silly.
Therefore, HR 8404 is not intended to codify Obergefell and there is no reason to think that everyone is going to all this trouble just to make something that already exists and not going away.
So what is he doing?
Roger Severino cautions that, “Again, the practical effect if this becomes law will have nothing to do with the benefits of same-sex partnerships. It will have everything to do with excluding people of faith from their tax-exempt status for places of worship, adoption agencies who believe the best and most conducive place to place a child would be with a married mother and father, and for those who contract or receive government grants who want to live by their beliefs regarding marriage. Those are the groups that will be targeted. And this law would actually create this blackjack, which is a private right of action, which means that people could sue on their own in federal court to harass these groups.”
The private cause of action is there and there is no reason for it to be there.
Further, Severino notes, “We had a case from the 1980s regarding tax-exempt status for a civil rights violator. They were deemed not to be a charity and lost their tax-exempt status. And the Supreme Court said, because there is an established national policy against that type of discrimination, you lose your tax-exempt status and there is no recourse. That same tool will be used against people who believe that marriage is the union of one man and one woman, which is very different from other types of beliefs that are protected by statutory anti-discrimination laws.”
Mitt Romney was a vocal supporter of this shameful bill. But quite a few Senate Republicans joined in. Some were dissuaded after hearing from voters in their states. But not all.
“Make no mistake,” warned Alliance Defending Freedom President Kristen Wagoner, “officials and activists will use this bill to punish and bankrupt those who don’t share the government’s view on marriage.”
On Wednesday, HR 8404 received 62 votes in favor and 37 votes against.
Twelve Republicans voted to promote the legislation: Sens. Roy Blunt of Missouri, Richard Burr of North Carolina, Shelley Capito of West Virginia, Susan Collins of Maine, Cynthia Lummis of Wyoming, Rob Portman of Ohio, Mitt Romney of Utah, Dan Sullivan from Alaska, Thom Tillis from North Carolina, Joni Ernst from Iowa, Lisa Murkowski from Alaska and Todd Young from Indiana.
A Family Research Council fact sheet deconstructs promises that religious freedom will be protected.
Section 6(b) only protects those persons or entities “whose primary purpose is the study, practice, or advancement of religion” and only from being required to “solemnize[e] gold celebrant[e] […] To marriage.”
FRC notes that religious organizations that are not officially recognized as such, such as Yeshiva University, not to mention adoption and foster care agencies, would not be protected.
“Even those who fall or should fall within the very limited protections of Section 6(b) could still be sued and have to prove themselves. They will still be subject to years, and sometimes decades, of government discrimination, harassment, and litigation.”
As the Heritage Foundation writes:
…the only reason for adding explicit congressional blessing…is to cement same-sex marriage as a national policy that government agencies, like the IRS, can use as a club to deny traditional religious institutions exempt status taxes, licenses to assist in adoptions, and government financing and contracts.
This is what a betrayal by the Republican Senate means for religious liberty.