By Guy Page

Vermont churches’ current freedom from lawsuits prompted by their opposition to gay marriage may be in jeopardy following last Wednesday’s U.S. Senate amendment and approval of S4556, the Respect for Marriage Act. 

The bill, if signed as expected by President Biden, would legalize gay marriage across the country. At present, gay marriage is legal nationwide only by virtue of a Supreme Court decision. Congress has never passed a law similar to Vermont’s 2001 gay marriage legalization bill.

As Vermont Daily Chronicle reported in September, the U.S. House version of the Respect for Marriage Act lacks the religious protections contained in the Vermont law. At present, Vermont religious groups are exempted from conducting conduct gay marriages and hiring married gay people. But the 2022 House bill – approved by Rep. Peter Welch – contains no religious exemption and gives aggrieved individuals the specific right to sue for perceived violations of the law. 

Without a religious exemption, the House bill was considered Dead On Arrival in the Senate. But an amendment by Republican Sen. Thom Tillis of North Carolina included some religious protections. Reading it, the Church of Jesus Christ of Latter-Day Saints (Mormons) and the National Association of Evangelicals publicly supported the bill’s religious protections. Then 12 senators – mostly Republicans – backed the Tillis amendment. The amended bill passed 62-37, beyond the ability to filibuster. 

Because it was changed by the Senate, the bill must now return to the House for approval, rejection, or further amendment. The House will become Republican-led in January. Before then, the current House leadership and the Senate may reconcile the bill’s differences. Or it could be reintroduced into the new biennium. 

According to a statement by Tillis, his amended Senate version:

• Protects all religious liberty and conscience protections available under the Constitution or Federal law, including but not limited to the Religious Freedom Restoration Act, and forbids this bill from being used to diminish or repeal any such protection.
• Confirms that non-profit religious organizations will not be required to provide any services, facilities, or goods for the solemnization or celebration of a marriage.
• Guarantees that this bill may not be used to deny or alter any benefit, right, or status of an otherwise eligible person or entity – including tax-exempt status, tax treatment, grants, contracts, agreements, guarantees, educational funding, loans, scholarships, licenses, certifications, accreditations, claims, or defenses – provided that the benefit, right, or status does not arise from a marriage. For instance, a church, university, or other nonprofit’s eligibility for tax-exempt status is unrelated to marriage, so its status would not be affected by this legislation.
• States that the bill does not require or authorize the Federal government to recognize polygamous marriages.
• Recognizes the importance of marriage, acknowledges that diverse beliefs and the people who hold them are due respect, and affirms that couples, including same-sex and interracial couples, deserve the dignity, stability, and ongoing protection of marriage.

The Alliance for Defending Freedom (ADF), a conservative legal rights organization, calls the Tillis amendment ‘lip-service’ and warns of severe consequences to religious civil rights if either form of the bill becomes law. 

“Today, the Senate chose to fuel hostility toward Americans who hold beliefs about marriage rooted in honorable religious or philosophical premises,” said  Alliance Defending Freedom CEO, President, and General Counsel Kristen Waggoner. “This bill, which provides no protection or benefits that same-sex couples don’t already share, deceptively gives lip service to religious liberty while undermining the First Amendment freedoms that belong to each of us. 

“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. 

“It is shameful that 62 senators chose to ignore the Constitution and sanction discrimination toward these Americans. Make no mistake, this bill will be used by officials and activists to punish and ruin those who do not share the government’s view on marriage. 

“But it will not end there. When we undermine the First Amendment rights of our neighbors, we harm ourselves. ADF remains committed to ensuring the First Amendment protects the rights of all Americans and to defending those who face the predatory lawsuits that will result from today’s vote.”