Why conservatives are staging last-minute push to overhaul same-sex marriage bill
Sarah Westwood
Conservative Republicans are stepping up efforts to fight for changes in legislation that would codify same-sex marriage rights in federal law.
The growing opposition comes months after talk of a same-sex marriage bill began on Capitol Hill, with little in the way of coordinated messaging from Republicans at the outset.
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Congress began moving on the Respect for Marriage Act over the summer after the Supreme Court’s reversal of abortion protections raised questions about whether it would do the same for same-sex marriage protections established by the Obergefell v. Hodges decision in 2015.
The House passed the bill in July, and the Senate voted to proceed with an amended version last week with the support of 12 Republicans.
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But some conservatives are objecting to what they describe as inadequate protections for businesses, nonprofit groups, or people with religious objections to same-sex marriage.
“The Democrats’ gay marriage bill is all about teeing up the Biden IRS to target religious schools, churches, and charities,” Sen. Ted Cruz (R-TX) said Monday.
“The Senate bill pays lip service to religious liberty and conscience rights, but it does not offer any meaningful protections for those rights,” Rep. Chip Roy (R-TX) wrote in an op-ed on Monday. “Had the Senate sponsors wanted to, they could have explicitly stated that no individual or organization could be penalized by the government for operating according to the conviction that marriage unites husband and wife — particularly that the IRS may not strip any such organization of its nonprofit status.”
Sen. Mike Lee (R-UT) has helped lead an effort to delay the final passage of the bill until lawmakers agree to an amendment that would strengthen religious liberty protections beyond what’s in the current legislative text.
“That’s all I want — a protection saying the government may not punish any individual or entity based on a religious or moral conviction-based belief about marriage,” Lee said on the Senate floor last week. “That is not too much to ask.”
In a letter to Senate colleagues on Thursday, Lee and 20 other Republican senators argued the Respect for Marriage Act would erode religious liberties even more than the Obergefell decision did.
“Obergefell did not make a private right of action for aggrieved individuals to sue those who oppose same-sex marriage,” the GOP lawmakers wrote in the letter. “It did not create a mandate for the Department of Justice to sue where it perceived an institution opposes same-sex marriage, but the Respect for Marriage Act will.”
Conservative critics of the bill argue it lacks any mechanism to prevent government agencies from using it as a legal basis to go after groups that act on their support for traditional marriage — even if the legislative text doesn’t specifically grant that power.
“The fact that there is such hostility toward even having the conversation about strengthening the religious liberty provision has made conservatives really suspect” about the intent of the bill, Kevin Roberts, president of the Heritage Foundation, told the Washington Examiner.
“Conservatives were caught flat-footed,” Roberts said. “There are too many Republican officials who are cowards — and I use that word very purposefully — on this issue.”
Lee’s amendment would bar the government from taking a range of steps against a group or person who “speaks, or acts, in accordance with a sincerely held religious belief, or moral conviction, that marriage is or should be recognized as a union of one man and one woman; or two individuals as recognized under Federal law.”
Lee’s amendment defines the discriminatory acts that would violate religious liberty protections instead of just broadly referring to the right of people to hold opposing beliefs about marriage without specifying what that right protects them from — as the bill does now.
Government agencies could not end a group’s tax-exempt status, withhold grant money or federal contracts, or deny licenses and certifications to groups that oppose same-sex marriage, according to the amendment.
A bipartisan group of senators added an amendment to the legislation last week that was meant to address concerns about religious freedoms, including by affirming that people have a right to “diverse beliefs” about marriage.
With that amendment, the bill cites existing religious liberty protections and notes that the new same-sex marriage law would not erase them.
But critics argue the language is too vague to offer meaningful support for religious beliefs. They also note that existing protections have not stopped religious groups from facing lawsuits in recent years over their opposition to same-sex marriage.
While the religious owner of a bakery won a high-profile Supreme Court victory in 2018 for declining to bake a cake for a same-sex wedding, the ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission was considered narrow because it sided with the baker only because state officials had demonstrated open and personal animosity toward him, not necessarily because justices agreed in his right to deny services to a gay couple.
The Biden administration has also attempted to use federal funding as leverage to advance its social agenda in other contexts. For example, the Biden Education Department pushed earlier this year to tie federal funding for schools to expanding transgender rights in sports and bathrooms. A judge put that plan on hold.
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Although 12 Republican senators joined with all Democrats to invoke cloture last week, meaning lawmakers voted to avoid a filibuster and limit debate on the bill, conservatives are mobilizing to stop the final vote until the Lee amendment is added to the legislation.
“Of those 12 senators who voted for cloture, five of them, we believe, are movable,” Roberts said.
“I was almost uncharacteristically pessimistic when the cloture vote happened,” he added. “I am cautiously optimistic that we’re going to succeed on this one.”
Roberts said other conservative advocacy groups, along with Heritage, are coalescing this week around a “wonderfully coordinated plan” to push for Lee’s amendment to get added to the Respect for Marriage Act.