By Guy Page

The U.S. House of Representatives voted yesterday to pass the Respect for Marriage Act, which makes gay marriage the legislated law of the land and – critics say – undercuts the religious freedom.

The House vote was to agree with a Senate amendment of the original House version. HR8404 now goes to President Joe Biden for his signature. He is expected to sign.

Rep. Peter Welch (D-Vermont) co-sponsored the bill and voted for the final version yesterday. 

Alliance Defending Freedom Senior Vice President of Strategic Initiatives Ryan Bangert said the bill does far more than enshrine same-sex marriage into federal law. It intentionally jeopardizes the religious freedom of millions of Americans who have sincerely held beliefs about marriage, Bangert said:

“The House voted today to prioritize virtue-signaling over protecting the freedom to hold decent and honorable beliefs about marriage. This bill, which provides no protection or benefits that same-sex couples don’t already enjoy, deceptively gives lip service to religious liberty while undermining the First Amendment freedoms that belong to each of us. For months, many Americans, faith-based organizations, and churches across the country have raised concerns about the undeniable harms of this bill, yet Congress has rejected all attempts to include comprehensive religious liberty protections. We are grateful to the representatives who actively listened to these Americans and voted against this misleading legislation. Unfortunately, too few were willing to join them. ADF remains committed to ensuring the First Amendment protects the rights of all Americans and to defending those who will likely be targeted because of this legislation.”

Last month, the Senate failed by two votes to pass an amendment that would have granted specific, wide-ranging religious protections. It left in place a vague, less comprehensive religious protections clause sponsored by Sen. Tammy Baldwin (D-Wisconsin), the Senate’s first openly gay lawmaker and dismissed by the ‘social conservative’ minority of senators. 

Failing by a 48-49 vote, Amendment 6872 by Sen. Mike Lee (R-Utah) would have forbidden Congress to change the tax code, disallow deductions, withhold federal grants or other federal benefit, deny access to federal property or forums, or deny accreditation or licensing due to opposition to gay marriage. 

The Lee amendment would have prohibited Respect for Marriage from “pre-empting” current state or federal laws providing freedom of speech and religion regarding gay marriage. For example, Vermont’s gay marriage law offers specific religious protections and – unlike ‘Respect for Marriage’ – does not have a ‘right of civil action’ clause specifically empowering individuals to sue over perceived discrimination against gay marriage. 

Only one Democrat – Sen. Joe Manchin of West Virginia – voted for the Lee amendment. Two Republicans, including amendment sponsor Ben Sasse of Nebraska, were conspicuously absent for the floor vote. 

Last week, Vermont Sens. Patrick Leahy and Bernie Sanders and 59 other senators passed an amendment they say provides religious protection – a claim rejected as “lip service” by the Alliance Defending Freedom. “Unfortunately, this substitute does little to fix the bill’s significant religious freedom issues. It merely gives the illusion of addressing the bill’s problems, while giving cover to those committed to supporting the bill,” the ADF said. 

The so-called Baldwin/Tillis amendment appears to narrowly protect against legal action arising from refusal to assist gay marriage ceremonies, but leaves other potential areas of conflict untouched. It reads:

SEC. 6. NO IMPACT ON RELIGIOUS LIBERTY AND CONSCIENCE. (a) In General.–Nothing in this Act, or any amendment made by this Act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law. (b) Goods or Services.–Consistent with the First Amendment to the Constitution, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action.