Let’s get this out of the way. Whatever you think about gay rights, Obergefell v. Hodges was legally illegitimate in much the same way as Roe v. Wade. It was another case of a Supreme Court majority dictating its cultural preferences under the color of law. Unlike Roe v. Wade, there’s no significant pressure campaign to roll it back worth mentioning. Abortion opponents kept their fight going for generations. There’s zero evidence of gay marriage opponents having that kind of political stamina, organization or movement. Simply put, there’s zero reason for the push to abolish the Defense of Marriage Act which is what HR 8404, misleadingly named the Respect for Marriage Act, does.
The Left is claiming that after the Dobbs decision, there’s an urgent need to codify Obergefell into law left the Supreme Court wake up tomorrow and wipe it off the map. That’s nonsense.
So HR 8404 is not out to codify Obergefell and there’s no reason to think that everyone is going to all this trouble just to nail down something that already exists and isn’t going away.
So what is it doing?
Roger Severino warns that, “Again, the practical effect if this becomes law, will have nothing to do with the benefits of same-sex couples. It’ll have everything to do with excluding people of faith from their tax-exempt statuses for houses of worship, from adoption agencies that believe that the best most conducive place for a child in placement would be with a married mother and father, and for those who contract or receive grants from the government who want to live according to the beliefs with respect to marriage. Those are the groups who are going to be targeted. And this law would actually create this bludgeon, which is a private right of action, which means individuals could sue on their own in federal court to hound these groups.”
Private cause of action is in there and there’s no reason for it to be there.
Furthermore, Severino notes, “We had a case from the ’80s with respect to tax-exempt status for a violator of a civil rights law. They were deemed not to be a charity, and they lost their tax exempt status. And the Supreme Court said, because there’s an established national policy against that type of discrimination that you lose your tax-exempt status and there’s no recourse. That same tool will be deployed against people who believe that marriage is a union of one man and one woman, which is very different than 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 were jumping on board. A few were dissuaded after they heard from voters in their states. But not all.
“Make no mistake,” Alliance Defending Freedom President Kristen Waggoner warned, “this bill will be used by officials and activists to punish and ruin those who do not share the government’s view on marriage.”
On Wednesday, HR 8404 received 62 “aye” votes and 37 “no” votes.
Twelve Republicans voted for advancing 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 of Alaska, Thom Tillis of North Carolina, Joni Ernst of Iowa, Lisa Murkowski of Alaska, and Todd Young of Indiana.
A fact sheet from the Family Research Council deconstructs promises that religious freedom will be protected.
Section 6(b) only protects those people or entities “whose principal purpose is the study, practice, or advancement of religion” and only from being forced to “solemniz[e] or celebrat[e] […] a marriage.”
FRC notes that religious organizations not officially recognized as such, like Yeshiva University, not to mention foster care and adoption agencies, would not be protected.
“Even those who do, or should, fall within the very narrow 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 to add Congress’ explicit blessing… is to cement same-sex marriage as national policy that can be used as a club by government agencies, such as the IRS, to deny traditional religious institutions tax-exempt status, licenses to assist in adoptions, and government funding and contracts.
This is what a GOP Senate betrayal means for religious freedom.