Why Religious Freedom and Marriage Equality Need Each Other
Both rely on upholding equal protection and separation of church/state
Yesterday, President Biden signed into law the U.S. Senate’s amended version of the Respect for Marriage Act (H.R. 8404). The Act provides federal statutory authority for both interracial and same-sex marriages, as well as religious liberty protections (added by the Senate) in tandem.
In my opinion, the RFMA is a thing of beauty because it does not pretend, as culture-warring factions would have us believe, that religious freedom and marriage equality are inevitably at odds in a free, pluralistic society. In fact, both ideals ultimately rely on U.S. law upholding (1) the interplaying religion clauses of the First Amendment, which establish the need for separation of church and state, and (2) equal protection under the Fourteenth Amendment.
Interracial marriage rights, LGBTQ+ civil rights, and religious freedom would all inevitably be undermined by any failure to uphold the same constitutional principles.
Debate in the Senate regarding the RFMA was notably delayed until after the 2022 midterms when the lame-duck 117th Congress could focus more on good-faith bipartisan negotiation. Bravo to those realizing where hyper-partisanship has been taking us and getting this done before control of the House switches in January.
Since the bill’s first introduction in July, naysayers on both sides have complained that it did either too much or too little either for or against religious freedom, or for or against marriage equality. In popular commentary, extreme hypotheticals have highlighted worst-case scenarios with alarming rhetoric, while missing the point about the essential commonalities mentioned above. I’ve long believed that in politics, offending a sufficiently diverse pool of critics can, at least sometimes, be an indication of sensible compromise approaching for a pluralistic society that (hopefully) values function over drama.
The bill also made a statement about today’s ideologically lopsided and internally discordant U.S. Supreme Court, a distrust of whom the bill’s proponents may have been demonstrating by codifying marriage equality before Obergefell v. Hodges (2015), the landmark case which guaranteed the right for gay couples to marry, could be tampered with.
The Supreme Court’s public legitimacy—which ultimately springs from the trust of the American people—has been suffering considerably in recent years, to the point of crisis, according to some. Others have minimized the problem. However, complaints about SCOTUS have been diverse, including misuse of the high court’s shadow docket, conflict of interest disclosure loopholes, recusal issues, and other significant ethical lapses connected to the fact that there is no higher court to provide ethical oversight. Left to themselves, SCOTUS justices have been failing to follow the same ethical standards that lower court judges know better than to violate.
Some complaints against SCOTUS have been politically opportune for (and thus amplified by) liberals wanting to speak ill of the conservative majority occupying the bench. But as more credible complaints accumulate, each should be examined carefully by its merits, with the same principles applied to all justices across the board.
Ironically, Chief Justice John Roberts had, himself, named the framework for such legislation as the RFMA with his dissenting opinion in Obergefell. He had argued that traditional marriage, with its strong historical roots, should not be redefined for the entire nation by five “lawyers” (SCOTUS justices), but should be left to legislatures. Justice Roberts had been referring to state legislatures when he wrote it. Marriage laws have, historically, been considered state matters. However, civil rights law in the U.S. has long been considered a federal matter mainly because (1) civil rights are spelled out in our national Constitution (as amended), and (2) state legislatures can be woefully inconsistent about upholding them. Precedent allows that where state governments fail to uphold civil rights, the federal government can validly intervene.
But what of the nation’s religious groups in the debate? Religious freedom should matter to everyone regardless of their views about religion itself. No one should want the government assuming the role of “thought police.” Any religious community (or other philosophical group) should have the right to determine, declare, and uphold its own moral convictions within its own sphere of responsibility—i.e., its membership body. Practicing members of a particular faith should be spared from civil constraints to act in moral defiance of sacred religious beliefs, at least within reason.
Despite the high-profile objections of certain religious groups to the RFMA—groups such as the Southern Baptist Convention and the U.S. Conference of Catholic Bishops—more than a dozen religious groups (representing Christian, Jewish, Hindu, Muslim, Sikh, and interfaith traditions) signed a joint letter calling upon Senators to support the bill.
Notably, many faith groups expressing support for the bill did so despite having doctrinal positions against gay marriage. Simply put, they refrained from sowing conflict when there didn’t need to be any.
The Church of Jesus Christ of Latter-day Saints, to the surprise of some observers, also weighed publically in favor of the RFMA, issuing its statement of support in November. It had also supported similar legislation in Arizona. And along with over 45 others, it co-signed an open letter expressing concern about unnecessary conflicts over religious freedom and LGBTQ rights in Florida. In 2009, it supported a Salt Lake City nondiscrimination ordinance along much the same lines.
Many years ago, Russel M. Nelson, who is now President of the LDS Church, captured the concept well:
“Cannot boundary lines exist without becoming battle lines? Could not people unite in waging war against the evils that beset mankind instead of waging war on each other?”
In its official press release concerning the RFMA, the LDS Church stated,
“The doctrine of The Church of Jesus Christ of Latter-day Saints related to marriage between a man and a woman is well known and will remain unchanged…
We are grateful for the continuing efforts of those who work to ensure the Respect for Marriage Act includes appropriate religious freedom protections while respecting the law and preserving the rights of our LGBTQ brothers and sisters.
We believe this approach is the way forward.
The RFMA makes sense partly because of the balanced fairness it embodies, but also because the government has no justification for dissolving existing family units en masse for entire demographics of citizens. All married gay and interracial couples—particularly those with children—need basic guarantees.
Republican Senator Mitt Romney said regarding the RFMA,
“While I believe in traditional marriage, Obergefell is and has been the law of the land upon which LGBTQ individuals have relied. This legislation provides certainty to many LGBTQ Americans, and it signals that Congress… [esteems] and [loves] all of our fellow Americans equally.”
Ultimately, the bill was a win for religious groups everywhere that want religious freedom upheld, and aren’t inclined to demean themselves with inhumane fundamentalism or unnecessary culture warring, both of which have been generating crises of faith among religious communities at historic levels.
Conservative political commentator David French wrote last month in The Dispatch, in an article entitled “How Fundamentalism Fails” (referring to any fundamentalist religion):
“…how does fundamentalism fail? Because the bruised reeds and the wounded souls find each other. The community of the closed fist ultimately creates a community of the open hand. We were not created to be despised, to be hounded, and to be hectored into righteousness. Instead, our souls long for actual love and true fellowship…
“Ultimately, fundamentalism—for all of its punitive power—simply cannot compete with grace in the contest for the human heart.”
Mr. French, an attorney known for successfully arguing high-profile religious freedom cases, ultimately wrote in favor of the Senate’s version of the RFMA as follows:
“The magic of the American republic is that it can create space for people who possess deeply different world views to live together, work together, and thrive together, even as they stay true to their different religious faiths and moral convictions. The Senate’s Respect for Marriage Act doesn’t solve every issue in America’s culture war (much less every issue related to marriage), but it’s a bipartisan step in the right direction. It demonstrates that compromise still works, and that pluralism has life left in it yet.”
The principle of personal autonomy has not been declared a fundamental right by the U.S. Supreme Court—although the high court has ruled to protect it in some types of situations. Social contract theory applies. Moral duties stand. But governments are not meant to regulate everything. Let’s not forget the relevance of personal autonomy as a universal human right, an important mental health component, and a key element of critical thinking, innovation, happiness, and human potential.
Notably, 39 House Republicans joined House Democrats in supporting the bill's final passage last week.
Ahhh, the lovely sound of moderation being exercised in halls of power.
Peaceful pluralism wins again.
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Vikram David Amar of Verdict: “Post-Argument Analysis in the Moore v. Harper Case Raising the So-Called ‘Independent State Legislature’ (ISL) Theory: What Might the Court Do?”