You may have heard that yesterday the church came out in support of the Respect for Marriage Act. For reasons I’ll describe in a minute, this support is, in my humble opinion, a big deal.
But before we get to why it’s a big deal, it’s probably worth looking and what and why the Respect for Marriage Act is.
In broad strokes, the Respect for Marriage Act is a replacement for the Defense of Marriage Act from the 1990s. (And I mean that literally—Section 3 of RfMA repeals a provision of federal law added by DOMA that expressly allows states and the federal government to decline to recognize same-sex marriages enacted in other states.)
RfMA replaces that with its opposite: under the RfMA, states must give full faith and credit to marriages performed in other states, and cannot deny marriage benefits on the basis of the “sex, race, ethnicity, or national origin” of the married persons.
But, you might ask, why would something like RfMA be necessary? Didn’t the Supreme Court say that bans on same-sex marriage violate the U.S. Constitution? Well, yes. It did. But its recent Dobbs decision called into question whether the Supreme Court will follow its precedent and whether it will continue to recognize rights grounded in the Fourteenth Amendment. True, Justice Alito dismisses concerns that Dobbs will lead to the overruling of Obergefell and Lawrence as “unfounded.” But Alito’s assurances certainly ring hollow, both in light of the substance of the opinion and in Justice Thomas’s concurrence, where he urges the Court to reconsider all of its substantive due process decisions, including Lawrence and Obergefell. So while the bill is not currently relevant, it provides significant protection to same-sex married couples if the Court continues with its skepticism of substantive due process.
I’ll note here that I’ve seen some criticism of RfMA on Twitter, asserting that it doesn’t go far enough. While it requires recognition of same-sex marriages, it doesn’t require states to perform same-sex marriages; in a world without constitutional protection of same-sex marriage, states could ban same-sex marriage. LGBTQ couples who lived in one of those states would have to cross state lines to marry, a not-insignificant burden to place on them. These critics would prefer that the federal government codify same-sex marriage.
So why doesn’t it do that? Because it lacks the constitutional authority to do so. Since I’m not a con law person, I reached out to a friend and colleague last night who is, and he explained why my intuition was right. Essentially, he explained, the 14th Amendment enforcement clause powers are limited. If the Supreme Court overrules Obergefell, the federal government doesn’t have the power to force states to issue marriage licenses, because there would be no underlying constitutional violation to remedy.
So the best Congress can do is require states to recognize other states’ marriages. It’s not a perfect solution, but in the event Obergefell goes away, it provides important protections to married couples.
So why is it a big deal that the LDS Church came out in support? At least three reasons. The first is, this is, afaik, the first time the church has acknowledged the civil legitimacy of same-sex marriage. In the past, the church has recognized some fundamental individual dignity of LGBTQ people, but made a normative argument against same-sex marriage. Here, it recognizes the legitimacy of such marriages and publicly supports legislation that requires that civil recognition.
Second, it didn’t have to say anything. The church doesn’t comment on every piece of legislation out there. It could have stayed silent and nobody would have been surprised. I don’t think virtually anybody expected, much less demanded, that the church weigh in on this.
And third, as my friend points out, the support of an institution that has historically opposed same-sex marriage sends a signal. That signal goes to members of the church, but it also goes to other institutions that have historically opposed same-sex marriage and to Mormon politicians and to Mormon and non-Mormon LGBTQ individuals.
Now, just like the RfMA, the church’s response isn’t perfect. I really wish it didn’t preface everything with the fact that, for religious purposes, it will still decline to perform or recognize same-sex marriage. Like, we know that; it’s not a surprise. And it’s mostly irrelevant to the church’s support for RfMA.
But it definitely represents a step forward by the church. And I’ll always applaud steps forward.
(This post is already too long, so I’ll only mention in passing that the current version of the bill—which apparently has broad bipartisan support!—has a carveout for religious entities. I doubt the carveout is necessary, since the bill only requires state-level recognition of marriage and the First Amendment almost certainly already provides these particular protections to religious organizations. But politics being what politics are, this added language may be what it takes to get enough bipartisan support in the Senate to overcome the filibuster.)
Photo by Maico Pereira on Unsplash
By Common Consent, a Mormon Blog 
My baseline belief or prior is that our current church leaders (as a group, allowing for individual opinions) are fundamentally opposed to marriage equality as a religious or moral or principled matter. I believe they are also essentially pluralists, not dominionists, and are not intent on imposing their religious views on the world. (For what it’s worth, that is the message I will repeat.) Yesterday’s release supports or is consistent with my baseline. But I’m still curious why there was a need or desire to say anything.
Sam, I think you give the littlest attention to the biggest reasons for the church’s support. First, this bill is potentially a way for the church to call a cease-fire and walk away from the fight with everything it wants intact: namely religious exemptions for itself, BYU and to the extent it covers individuals, the broader membership. Yes, these exemptions are elsewhere in our law, but that they will be renewed here.
Second, the church’s stance on SSM is very relevant to its support of this bill and they mentioned it to make sure no one confused their support of the bill with a chance in doctrine. It’s THE reason it supports it. The church wants to continue to hold to that position forever.
“We believe this approach is the way forward” should be read in light of President Oaks’ speech at the University of Virginia, where he argued that conflicts between religious freedom and non-discrimination are best handled through the legislative process, where people of good will can negotiate practical compromises, rather than through the legal system. This bill does exactly that.
That speech also strongly supports christiankimball’s belief that Church leaders are (or at least President Oaks is) “essentially pluralists, not dominionists.”
The statement never quite says “We support this bill.” But the Church saying anything good about it will have pretty much the same effect, and I’m sure they knew that.
When the House of Representatives voted on this bill in July, five the six LDS members of the House voted for it. They were among the 47 Republicans who voted for it. (The only LDS Representative to vote against it was Andy Biggs, of Arizona, who is one of the most radical, reality-denying conservatives in the House.) This suggests two things. First, the least feverish and most centrist part of the Republican Party has calculated that opposing same-sex marriage is an absolute loser in political terms. Second, as early as this past summer, Church leaders had decided to support the bill. The LDS members of the House quietly received the word on the Church’s position, and they voted accordingly because they knew they would be politically safe.
christiankimball is astute to ask what the Church gains by making this statement now. Maybe part of it is that the Church is following through on giving political cover to the LDS House members who voted for the bill. I think Church leaders are also feeling their way forward, trying to establish a new status quo on what Chris calls their pluralism. They may be trying to signal quietly to Church members that pluralism is the policy. If Church leaders stick to this position, we might get to see whether it calms some of the partisan political conflict within the Church.
Who knows how this secular pluralism will affect the Church’s internal anti-queer policies, which I believe are contradictory and unsustainable for reasons that have been discussed at length elsewhere on this site. When I say that Church leaders are feeling their forward, this is part of what I mean. Church leaders may be trying to restore a position of pluralism in secular politics, but how the internal situation will develop is a huge unknown for everyone.
The statement’s first paragraph cannot be true given what’s said in the other two.
The “doctrine related marriage between a man and a woman” includes, as spelled out repeatedly in scripture and other church resources, that homosexual relations are “abominable” and contrary to “divine design.” The Lord commanded that Israel prohibit homosexual relations within its borders for “any of your own nation, [and] any stranger that sojourneth among you.” By legitimizing such “abominable” behavior, gay marriage contributes to “the disintegration of the family” inviting “calamities foretold by ancient and modern prophets” upon our nations.
Contrast that with the second and third paragraphs of yesterday’s statement where gay marriage is described as a “right” deserving of legal protection. The Church’s role, “the way forward,” is to cooperate in preserving gay marriage alongside religious liberty.
Quite an about-face.
The first is, this is, afaik, the first time the church has acknowledged the civil legitimacy of same-sex marriage.
One could argue that FamilySearch’s decision to allow same-sex parents in its pedigree chart was the first time. (I don’t know if the implementation of that decision is complete.)
“Under the RfMA, states must give full faith and credit to marriages performed in other states.”
See also, the US Constitution Article IV, Section 1.
Interesting, Sam. If passed, is there a chance the Supreme Court could just strike down this act instead of or in addition to Obergefell, on the basis of states rights or something?
Bro. B, I wouldn’t put anything past a motivated Supreme Court. But with broad support and a good constitutional hook (full faith and credit, I assume, though it’s not my area and there could certainly be other justifications), I feel like this has at least a decent shot at surviving.
Many years ago as blog time goes, at Times & Seasons, pre-Obergefell, Nate Oman wrote a post about the potential benefits of same-sex marriage AS PUBLIC POLICY without in the slightest calling for any change in our religious life. I didn’t at all like the post at the time, but it worked on me for a year or more until I could finally distinguish between public policy and religious doctrine and practice. We don’t try to ban through legislation other things that are contrary to our religious doctrine and practice (the use of tobacco and alcohol, offensive use of the Lord’s name in vulgar speech, depictions of angels with wings). We might join with others in regulating some of those things (age of drinking, where/when/to whom sales may be made, blood alcohol level for drivers) when actual likely harm is predictable, but we have adopted a live-and-let-live policy where imposing our internal rules on the broader world is either demonstrably unjust, or at best pits us fruitlessly again a broader world that has decided otherwise.
That’s how I’m interpreting this, and I hope it signals the same live-and-let-live attitude beyond this single bill and its consequences. As long as it doesn’t impose on us some condition that infringes on our own doctrines and internal religious practices, society has moved in a direction some may not like but which we have no legitimate right to oppose.
Especially if this allows us as a Church to move beyond an obsessive focus on same sex marriage, a focus that has sucked all the air out of our ecclesiastical room and prevented us from addressing other far more important (to me, at least) issues.
Agreed, Ardis. Thanks for that perspective!
Mostly agree, but it would have been a lot more meaningful if the Church’s statement had come BEFORE midterm elections and BEFORE the act was assured passage through the Senate. So I wonder a bit about the motives.
Elisa, I also think it’s interesting that this statement comes right after the elections, but I don’t think there’s anything problematic about the timing. Mostly, I think it reflects the surprisingly uncontroversial nature of this legislation. Forty-seven House Republicans voting for the bill was a bigger number than most observers expected. The bill has not been a political flashpoint. The LDS Republicans who voted for it were all reelected easily without a statement from the Church.
This week the Church’s statement actually gives a little nudge that might help the bill along. When the House voted on it in July, it didn’t get that much attention. Now that it’s on the verge of passing both chambers there’s more publicity and more potential controversy. It needs to pass the Senate with at least 60 votes, which will probably happen today. The House will need to vote on it again because of changes the Senate made to the bill. The Church’s statement gives cover for some of the favorable Republican votes.
I don’t know about the manner and language of the church’s statement, but putting this aspect of the culture war to rest is a win-win for us all.
This is a 180 for the church, given its prop 8 campaign and amicus briefs it filed when gay marriage was being debated before. I really don’t understand how this embrace of pluralism in society doesn’t prompt the church to support the ERA and reasonable abortion laws. The church went out of its way to publicly say they are still anti-ERA and say they have no political position on abortion. Why aren’t they willing to work with others on those issues?
Call me cynical, but I don’t think it’s a big deal. They’re talking out of both sides of their mouth trying to appease both sides of their membership. They start saying “this is our doctrine it will never change” to comfort the homophobes, but then also support the act, which, they hope, will help keep some of the progmo’s in the church.
Talk is cheap, and it doesn’t cost them a lot of social capital to do a bit of double speak and hope to staunch bleeding a bit.
And course they got the exemptions they wanted, so they don’t mind throwing the tiniest of bones to the progressives with some empty words.
Hi Jimothy. I have no idea if you’re cynical or not, but I do think you’re wrong here. Like I said in the OP, the church recognizing same-sex marriage as a legitimate civil status represents a change in the church’s position, and a sea change from just 15 years ago or so. And I have trouble conceiving of such a large change as anything other than a big deal.
Is it perfect? Absolutely not. Does it erase or moot the church’s anti-same-sex marriage activities? No. But it is definitely a good thing, for various reasons, some of which I laid out above.
If you’re a gay person and dating or in a relationship, the church and BYU will still punish and discipline you. Excommunication and expulsion are likely for for gay people who date or in a relationship.
They’re trying for a truce so they can keep tax exempt status, and continues to receive government funds for BYU despite punishing and disciplining gay people in their midst.
Hey Steve, fwiw, the church was at no risk of losing its tax exemption for reasons I’ve gone over a ton over the years.
But let’s pretend it was: that doesn’t explain why the church came out in affirmative favor of the Respect for Marriage Act. The added religious exception language wasn’t added at the church’s request, and its passage didn’t turn on Mormon Senators’ votes. Mike Lee voted against the Act and, while Romney voted for it, it’s not clear that he did so because of the church’s approval. And he wasn’t the key vote: there were 12 Republican votes in favor of the Act, so it would have passed with or without his support.
So why would the church say that it approved of the legislation and that it wanted to preserve LGBTQ rights? Because it didn’t have to. That almost certainly didn’t sway the vote. It didn’t provide any benefit to the church–the church could just as easily have remained silent and nobody would have noticed or, frankly, cared.
So I think it was a pretty big deal that the church affirmatively supported legislation that not only recognizes, but protects, same-sex marriage.
This doesn’t change anything for vulnerable gay people in the church. The recent government investigation into how BYU punishes gay people went nowhere fast. The church basically just said we have the right to discipline gay people and the government said “OK then”. Gay people who date or are in a relationship will still be punished, disciplined, expelled and excommunicated. This bill does nothing to help those people. This bill will, however add specific protections for the church. It’s actually quite underhanded.
steven[etc.], of course the bill doesn’t change anything about how the church treats LGBTQ people. That kind of bill would almost certainly be unconstitutional, and isn’t within the scope of what the Senate does.
And the bill does, in fact, help LGBTQ Mormons who are excommunicated; it ensures that their marriages will be recognized even if Obergefell goes away and some states reinstate a ban on same-sex marriage. The church’s support represents a sea change from the late 90s and early 2000s where it was lobbying against the civil recognition of same-sex marriage. That’s a big deal.
Questions of the church’s treatment of its LGBTQ members are important, and have been discussed here (among other places) multiple times. But the church’s reversal of its opposition to civil recognition of marriage is notable and important.
The bill makes it impossible for lawsuits to be brought against the church for discrimination against the LGBT community. This is why they’re on board with the bill. It’s not unconstitutional to prohibit punishment of LGBT people in the church, or at BYU simply for dating or being in a relationship. We disagree.
I am absolutely in the “This Is A Big Deal” category. This gives cover for those of us who believe that we need to be more loving towards, and supportive of, those who are in loving marriages that are not standard heterosexual.
Even though I can’t think of a specific example of this, I can imagine someone in church or even in general conference saying this: “My family has been close to a non-member family down the street. We are aware that they drink wine with some of their meals. We have not found that their social drinking to be a barrier to a good friendship. I respect them and they respect and understand me.” Couldn’t that be said today? Can’t we announce our respect for people who don’t understand the world just as we do?
Now, with this change, I can also imagine something similar: “My family has been close to a gay-married family down the street. We do not find that their loving relationship to be offensive. They love each other and their children. I respect them, and they respect and I think they may understand me.” I don’t think that we will soon hear such things, but it is possible now with this kind of cover. It is remotely possible. This is so different than our church actively campaigning to make such relationships illegal and calling them “counterfeit.” If we support the legalization of these kinds of marriages then I don’t think that we can label them so negatively.
It is a big step. At least I see it that way. I wouldn’t be surprised if some statement is made to step back from this a bit. Cause that is how it has long been. Progress, then retrenchment.
I am pleased to see this.
Let’s be clear about what the religious exemption in this bill actually does. It’s a lot more narrow than stevenj777 seems to think.
The exemption says that a religious organization can’t be sued for refusing “to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.” That’s it. It says nothing about any other kind of discrimination.
There is another point, a more subtle point, that I think is important. When five LDS members of the House voted for this bill in July, the bill did not include any religious exemptions. Those five Representatives are the entire Utah delegation and one Representative from Idaho. It’s really hard for me to believe they all voted that way without knowing, on the Q.T., that the Church would support the bill. If the Church were going to demand any kind of religious exemption, it’s very likely that the Church would have made that known in July.
I’m not a defender of the Church’s anti-LGBTQ policies. Those policies, as directed toward the Church’s own members, remain as problematic as they have ever been. But the reality is that the Church appears to be making a huge change in its orientation on the issue of civil marriage for people who are not in the Church. If Church leaders have really decided to stop using the Church’s money and influence to oppose legal same-sex marriage, that matters.
Various news outlets have absolutely portrayed this as “the Church came out in support of the Respect for Marriage Act,” as per the OP.
But it doesn’t. As I read it, the statement offers support for 3 things:
1. The well-known doctrine of marriage between a man and a woman.
2. Ensuring the Respect for Marriage Act includes appropriate religious freedom protections.
3. An “approach” or process that combines those religious freedom protections with
– Respect for Law
– Preserving the rights of LGBTQ brothers and sisters.
Nowhere does it voice support for the RFMA. The only reference to RFMA is in the context of amending it.
The remaining subject for consideration is whether the reference (twice) to the rights of LGBTQ brothers and sisters is a general statement or specifically includes the right to marry as addressed in RFMA. And whatever rights are countenanced, is it as natural rights or civic/legal rights?
It is interesting after all these years, coupled with the transformative changes in marriage mores in the last ten years or so, that the proposed Respect for Marriage Act specifically excludes polygamous marriages.
The second relic of barbarism ostensibly continues to be perceived as a threat to the moral fabric of America.
abidetheday, I think it’s hard to read the statement as not voicing support for RFMA. The expression of gratitude for those working to ensure the bill contains protections both for religious freedom and for the “rights of our LGBTQ brothers and sisters” is followed by “We believe this approach is the way forward.”
Are we to believe the Church meant, “We don’t support this bill, but we think this is the best way forward toward the completion of the drafting process, after which we hope it will be defeated”?
And even if that is what the Church meant, it also refers to the “rights” of LGBTQ people in a context which could only mean the right to have one’s same-sex marriage recognized as valid. Which is, I am happy to jump on the bandwagon to say, a big deal.
I think you’re technically correct as to what it didn’t say. But the only other interpretive possibility is an absurdity.
I also find the final sentence very telling as to the Church’s motives in this move: It hopes to “heal relationships and foster greater understanding.” One could argue this means the Church wants to heal the relationships of gay couples and foster understanding of gay people by Church members, but I’m very skeptical of that read. I think the obvious interpretation is that the Church is smarting from the blowback and reputational harm resulting from its opposition to gay marriage, and is hoping this move will earn it some goodwill.
Hey abidetheday, I’m not sure why you’re trying to cabin the church’s statement so hard. But the church comes out expressly in favor of the Respect for Marriage Act; it doesn’t literally say the words “We support the RfMA,” but the context and the language both say that the church supports RfMA. Any other way of reading the announcement both misreads it and represents surplusage.
Travis,
I think you are correct that the references to the rights of LGBTQ people are most naturally and logically understood to include the right to have one’s same-sex marriage recognized as valid.
As other commenters here have noted, this creates a natural tension between stating that there is a right to have one’s same-sex marriage recognized while simultaneously reaffirming a position that marriage is between a man and a woman. If the Church only defines marriage as between a man and a woman then a same sex marriage is not a marriage and therefore how could there be a right to recognition of a marriage that was never a marriage per institutional definition?
The answer appears to be through distinguishing between natural rights or eternal rights and civil rights. As the Church did right after Obergefell. https://www.churchofjesuschrist.org/church/news/church-leaders-counsel-members-after-supreme-court-same-sex-marriage-decision?lang=eng
This theory of what the Church statement means by “rights” is reinforced by the fact that the new statement directly links “preserving the rights” to “respecting the law.”
That said, I do think that explicitly affirming the civil/legal right to marriage is, as you put it, a big deal. Though not the first instance of the Church doing so. (e.g., https://youtu.be/-s0D56XlkCM)
But I think any inference of support for RFMA itself must be heavily qualified. As you noted, the “We believe this approach is the way forward” statement comes directly after the expression of gratitude for those working to ensure the bill contains protections both for religious freedom and for the rights of our LGBTQ brothers and sisters. Hence, my conclusion that the “approach” referenced is specifically the approach of combining anti-discrimination legislation with religious freedom language. As in the Utah compromise. I think it would be fair to read the statement as supporting RFMA but ONLY insofar as it contains religious freedom language. Without that language in the proposed amendment, the bill does not represent the ‘approach’ that is seemingly the more direct subject of the Church statement’s support.
**
Sam Brunson,
I reassure you that I am not trying to “cabin the [C]hurch’s statement so hard.” Really, that isn’t very fair toward me or toward the pursuit of reasoned understanding.
We can disagree about whether there is any surplusage issue here. Inasmuch as the points I presented impute meaning to each clause of the statement, I really don’t think that’s an issue. We could also bring in plenty of other common-law canons it construction. Presumption against absurdity, presumption against implied repeal, or expressio unius.
But more simply, my message remains that the statement specifically expresses support for “the approach” and not “the bill.” The statement seems focused (and timed) toward supporting the amendment that would make the bill more reflective of that approach.
The language expressly does not say the church supports RFMA (though I think it is safe to say it implies support for the provisional version of RFMA amended to incorporate the religious freedom language).
Similarly, the context seems more relevant to the antidiscrimination+religious freedom approach than to the bill itself.
Laursat , I’m aware that this bill doesn’t have the larger scope to cover what I was talking about. I’m just looking at the bigger picture and how it relates to the larger truth. What about the religious freedom to marry the person you love in the church you were raised and belong? Gay marriage is already the law of the land. This bill gives no more rights to gay people. But it does give the church explicit right to callously discriminate against its gay members. I am about as happy about this bill as I was with the release of the Mormons and gays website. It paints a pretty picture covering stuff that is very ugly going on in the church.
abidetheday, I agree that the church’s support for the RfMA is conditioned on the religious provisions in it. If that’s you’re point, we’re absolutely on the same page. I read you as saying it doesn’t represent support for the bill’s requirement that states recognize same-sex marriage; given its timing, the title, and the content and context of the statement, I think that would be an untenable reading. But yes, if you mean the church supports the bill in its current form, I’m with you.
Steven, I think you’re significantly underreading the benefits of the bill for LGBTQ individuals and significantly overreading its protective nature to churches. Sure, it doesn’t provide new rights for LGBTQ married couples. But under current law, they don’t need additional marriage rights because Obergefell guarantees the right to marry. But, in light of Dobbs, which did away with a right women had enjoyed for 50 years, and was premised on the same constitutional provision as Obergefell, the right to marry looks increasingly tenuous. The RfMA protects the right to marry and have states and the federal government recognize that marriage even if the Supreme Court Dobbses marriage. It provides certainty to the LGBTQ community, in spite of the uncertainty around marriage.
Meanwhile, the language that allows churches to discriminate has no current content. It basically allows churches not to recognize same-sex marriages without facing civil liability. But they already can—current First Amendment jurisprudence clearly protects their right to discriminate on the basis of sexual orientation. And frankly, that line of constitutional jurisprudence is much less tenuous than the substantive due process line.
Which is to say, arguing that the does nothing for LGBTQ people but provides new rights for religion is both incoherent and wrong.
To stevenj777ca31a5d985: The government cannot tell a private, voluntary, religious organization how to treat its members. I’m not sure why on earth you would think that would be reasonable.
The Church may be responding to the fact that the rising generation in western countries mostly does not believe that LGBT relationships deserve less respect than heterosexual ones. This may also be visionary signaling to the next generation of Church leaders and members to adopt a radical revision of LGBT relationships within the Church.
Steven John, without disagreeing with you over the suffering caused when a church’s doctrine prohibits gay marriage, I hope we can agree the government should not be forcing churches to solemnize marriages contrary to their own belief systems. Maybe you think that’s a proper thing for governments to do, but I find it positively dystopian. The freedom for churches to engage in such discrimination does not come from this bill; it comes from the First Amendment–and, one could argue, from the God-given or natural right to choose one’s own beliefs.
If you think the government should be able to prevent, say, Catholics from discriminating against gay couples who want to be married and want the Catholic Church to recognize it, would you also want the government to prohibit discrimination by the Catholic Church against Muslims or Jews? Generally, yes, we oppose that sort of discrimination! But if someone identifies as a Muslim, observes the five pillars of Islam, but also wants to be able to identify as Catholic, does the Catholic Church have to accept that syncretic version of what it means to be Catholic? If it must, then can any religious group meaningfully define itself in any way?
We can hope for greater acceptance of LGBTQ people within religious communities while also realizing those changes must come from within the communities, and governments have no business dictating to religions what they ought to believe and whom they ought to admit.
Travis, raising children within a church that does not fully support them as LGBT is cruel. It leads to homelessness, drug abuse, prostitution, and suicide. It’s a serious matter. We know segregation didn’t work. If polygamy and banning Black people didn’t last neither will this. The church has a tax exempt status and BYU receives millions from the government every year. The government certainly doesn’t have any obligation to uphold a private practice that is detrimental to society. The dystopian society speak of is the one that we have now.
Steven, nobody here disagrees with you that the church’s policy on LGBTQ members is harmful. But that has literally no relevance to the question of the church supporting the RfMA. Or, for that matter, to the question of the church’s tax exemption.
I agree with Travis that the government CANNOT mandate a religion’s core beliefs without violating constitutional first principles.
I agree with Steven John that it CAN take other steps. Like removing tax exemption statuses.
But I think it could only take those steps uniformly, toward religious institutions in general, and not on the basis of this or that specific point of doctrine. Unless that point of doctrine violates law. But any law mandating religious solemnization of marriages or proscribing the acceptable basis for issuing a temple recommend, or controlling the definition of marriage in a Sunday school manual would be a clear constitutional violation.
Whatever harm one ascribes to an institution teaching that marriage is ordained between a man and woman, it is not a viable basis for governmental discrimination between religious sects.
And to generally withdraw government recognition of religions as non-profit organizations would lead to its own, arguably much greater amount of social harm and dystopia.
Sam Brunson, it absolutely is relevant. The RfMA provides legal right to discriminate against LGBT people and because of the way they treat gay members of the church they shouldn’t be allowed or permitted these additional rights.
I believe will see a time when gay people are fully included in all of our institutions. Things change and more and more people want their gay family members to be married in their church. They want their family whole. To me this bill is clever and it provides additional rights for churches to discriminate against the LGBT community. Moving us in the wrong direction. There’s a reason why so many Republicans are on board. This bill is anti-gay. It codifies discrimination.
The church recognizes that the values of society continue to diverge from the values of the church, and in order to preserve our ability to follow God’s law of of marriage we have to make compromises. If we don’t, odds are at some point we’ll be forced to preform same sex marriages in our temples, which is something we cannot do. This is a strategic endorsement, and while I wish we didn’t have to make it, I understand the reasoning behind it. And yes, the church absolutely had to clarify in their statement that their endorsement doesn’t change church doctrine or policy, otherwise you’d have people taking it to the extreme (e.g., new for strength of youth manual changing language in multiple piercings and tattoos, and how people took that as a sign of it being acceptable).
For reference, the full text of the section of RFRA related to guaranteeing religious freedom is:
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.
SEC. 7. STATUTORY PROHIBITION.
(a) NO IMPACT ON STATUS AND BENEFITS NOT ARISING FROM A MARRIAGE.—Nothing in this Act, or any amendment made by this Act, shall be construed to deny or alter any benefit, status, or right of an otherwise eligible entity or person, including tax-exempt status, tax treatment, educational funding, or a grant, contract, agreement, guarantee, loan, scholarship, license, certification, accreditation, claim, or defense, provided such benefit, status, or right does not arise from a marriage.
As the text itself acknowledges, it creates no new rights; it merely clarifies that the bill cannot be construed to restrict rights already protected by the Constitution and other laws. I believe I am dealing in fact and not mere difference of opinion when I say you are mistaken on that point, Steven John.
Stephen, the Act does not create any new rights. Period.
Ashton, also, the Act does not create any new rights. Period. There is no world in which the US government will force religions to solemnize marriages that they don’t want to do.
Why would they find it necessary to add this amendment to the bill if there wasn’t room in the law as it stands for change? I don’t know, I found several videos and comment threads that also feel that this is not a happy progressive thing that Republicans, for some happy reason are on board with. I’m not gonna feel as wrong as you want me too. This comment section reminds me of the marriage rights being pushed for 10 years ago. So many people said equality in marriage for gay people just isn’t possible under the constitution. But it is.
I’ve been having some confusion as I read posts and comments. I wonder if this is an adjunct to Obergefell, or a completely separate shield for these married couples. Additionally, if Obergefell was reversed, would that nullify RfMA?
I have always maintained that all of us, including all religious organizations, and including COJCOLDS, already enjoy the strongest possible legal protection to exercise our religious practices, from the First Amendment. And that is what overrides any perceived hazard from this bill of Congress or a SCOTUS opinion, or what have you. I think whining about a threat to religious freedom is a giant, smelly red herring, that may be intended to gaslight a listener into overlooking the real issues.
Steven, I mean this in the kindest possible way: YouTube videos and comment threads aren’t known for their expert legal interpretation. Why would Congress add this language? Probably because politically and popularly, Americans view LGBTQ rights as conflicting with religious rights (even though that’s an absurd dichotomy, given that many LGTBQ individuals are also religious and given that many religions don’t discriminate against the LGBTQ community). Maybe because of an unfounded persecution complex where religious institutions vastly overestimate the risk to their religious liberties. Maybe because it was necessary to overcome the filibuster. But you’ve had a number of attorneys here explain how and why this doesn’t provide religion with any rights or abilities it didn’t already have (not, I should emphasize, that anybody’s saying it’s normatively good that religion can discriminate, only that it’s descriptively permissible under current, and any imaginable, constitutional regime).
MDearest, the RfMA is entirely meant as a backstop in the event Obergefell is overturned. The right to marriage is grounded in substantive due process, a legal grounding that a number of conservative Justices dislike. Roe was also grounded in substantive due process, meaning marriage rights are potentially at risk. RfMA is grounded, not in substantive due process, but in the Constitution’s Full Faith and Credit Clause. That means that overturning Obergefell doesn’t affect the RfMA. (There’s no guarantee, of course, that the Court will respect the FFaC clause, but it would be an entirely different analysis than with Obergefell.)
Yes, there is confusion in these comments. Sam explains these things well, but at the risk of being redundant, I’ll try a slightly different summary.
In the discussion surrounding the Defense of Marriage Act, two different things are happening. One is a straightforward legal situation, though the legal situation requires some background explanation. The other thing is anxiety about religious freedom that some folks, including the Church, have been stirring up in recent years. That second thing is the confusing part.
Here’s the legal situation. The Constitution’s Full Faith and Credit Clause requires states to recognize each other’s official acts. This has traditionally included things like marriage, divorce, and child custody. When same-sex marriage became a possibility in some states in the 1990s, some people started getting worried that the Full Faith and Credit Clause would require same-sex marriage everywhere. That led to the Defense of Marriage Act.
The Full Faith and Credit Clause gives Congress authority to “prescribe the Manner in which [State] Acts, Records and Proceedings shall be proved, and the Effect thereof.” So, arguably, Congress can put some limits on full faith and credit. Using this power, Congress passed the Defense of Marriage Act (DOMA) in 1996. DOMA allowed states to refuse to recognize same-sex marriages performed in other states.
Under Obergefell, DOMA became unenforceable because same-sex marriage is now recognized as a constitutional right that no act of Congress can undo. However, if the Supreme Court overrules Obergefell, DOMA would be enforceable again. That’s why the Respect for Marriage Act is needed. The Respect for Marriage Act repeals DOMA.
That’s the clear-cut legal part of this. RFMA is a clear win for LGBTQ rights because it ensures that same-sex marriages will continue to have legal effect throughout the country even if the Supreme Court overrules Obergefell.
The confusing part of this is the religious exemption that was added to RFMA in the Senate. Is this religious exemption necessary to protect churches from being required to solemnize same-sex marriages? No, it is not necessary, because the Constitution already gives that protection to churches.
So why was the exemption added? It appears mostly to be a matter of political posturing. Some conservatives, notably including the LDS Church, have stirred up a lot of fear about threats to religious freedom. Putting a religious exemption in RFMA does not give churches any new rights, privileges, or protections. It does not take any rights away from LGBTQ people. But the religious exemption does give conservatives the chance to talk about how they are protecting religious freedom.
If putting the religious exemption in the bill secures the votes necessary for it to pass, then that’s fine. No harm is done to anyone’s rights.
Wow, Sam and loursat, the last two comments are so clear and succinct; I love my BCC. I had to do a little googling of ‘substantive due process’ which added to my overall view of the legalistic world we are bound up in. Sometimes I hate the legal horsecrap that I see people – “free” citizens – subjected to, and I would rather chew sawdust than find myself in a courtroom. But I am willing to be subject to it, if it ultimately leads to the authentic rule of law. Sometimes it goes there, enough to effect MLK’s arc of justice.
WordPress ate my comment dangit! About Sam’s and Loursat’s clear and succinct summaries, with a side note about googling ‘substantive due process’ and my confession about how I hate legalism; finding myself in a courtroom, but I love when it all leads to authentic rule of law. And effects MLK’s arc of justice.
Anyway, thanks. I love my BCC.
Testing … tried four times, it’s not posting
Says duplicate comment when I try to post my entry.
Gay people will be able to marry in the churches. This includes the Catholic Church and the LDS temple too. Temple ceilings will be especially important for gay families since adoption is often involved and having something other than blood uniting them is beautiful. Most people want this change and I don’t know why anyone would think the tide will turn the other way. As far as this bill goes it provides the smallest protection against a possible overturning of marriage equality but really it’s a bill in search of a problem. Are we really so scared of the Supreme Court that we’re going to try to beat them at the their own game? The people lead this. Many of us don’t trust the bill its inconsequential to the change to come.
I agree. I think this is a significant step forward, one the church did not have to take, one that is kind, one that a number of other churches have chosen not to take, and as such I am quite pleased with it. Do I think the church should change its position on same sex marriage within its ranks? In truth, I don’t know. There are powerful arguments for it, and at least to me, the arguments against it seem only to be: “because we [presumably the Lord] said so”. Those arguments against might be sufficient, but it would sure be nice to have more information to buttress them. Just sayin’.
In my simplistic view I am in the opinion that people are reading too much into this. The church’s statement is not one of support for the new act. It is a statement of support for the inclusion of religious freedom protection disclaimers within the act. When they say “We believe this approach is the way forward”, they mean “Carry on with your reforms but please include the said disclaimers every time you come up with something new that you know we don’t agree with, because, for example, we don’t want people to get the wrong ideas that they somehow can now demand same sex marriages in our chapels etc”.
The church and the western world have parted ways long ago so it is a statement from the church saying in effect “Do your thing but do keep us out of it. We cannot police you but we are asking for the right to uphold the truth the way we understand it within our safe spaces. This is how we coexist on this planet.” Heavily paraphrased, but that is what I believed was the message, obviously conveyed in the politest manner possible.
The religious freedom protections were NOT passed; they were excluded. Guess hindsight is 20/20 vision. Churches can be sued by individuals and the federal government…this was never about respect for marriage or gay marriage. It was all and only about the continued goal of eroding personal freedoms, including the right to worship in ones own way and in ones own church. Religious organizations have always been able to function freely as long as their practices did not break the law…well, now there’s a law to make sure they are NOT free to follow their own conscious…it’s now illegal to worship a God the government doesn’t sanction first.
Hey Melissa, sorry I didn’t see your comment earlier; fwiw, your understanding of the Respect for Marriage Act doesn’t even bear the remotest connection to the legal landscape, either with respect to what the RfMA does or the constitutional protections for free exercise (not to mention that the superfluous language protecting religious conscience was, in fact, included in the bill).
And, speaking of: today Biden signed the Respect for Marriage Act.