Which commentators are right about Senate’s passage of Respect for Marriage Act?

The Respect for Marriage Act, which the Senate approved on Nov. 29, has become a Rorschach test for legal commentators—conservative ones in particular. Some have lauded it as a thoughtful compromise between irreconcilable positions on a flashpoint cultural issue. Others have rejected that framing and cautioned that the act, while nodding toward religious liberty and free speech, places those values in greater peril.

Libertarians see the Senate’s approval of the act as proof that “Congress can still do its job” by legislating “in response to Supreme Court decisions on controversial issues.” For instance, Alison Somin views the act as a defensible institutional response to the risk that the Supreme Court’s decision in Obergefell v. Hodges, which purported to create a constitutional right to same-sex marriage, may be reexamined. In her view, the act strikes a balance between liberal preferences for same-sex marriage rights and conservative preferences for religious liberty protections.

The socially conservative David French has repeatedly framed the Act as a Solomonic compromise between advocates of same-sex marriage and religious liberty devotees, a position echoed by such diverse groups as the LDS church, the National Association of Evangelicals, and the Council for Christian Colleges and Universities. In their telling, because the act says nice things about religious liberty and even affirms the continued existence of First Amendment and statutory protections for people of faith, it ensures that “LGBTQ rights can co-exist with religious freedom protections.”

In contrast, Dr. Albert Mohler, president of the Southern Baptist Theological Seminary, sees any claim that the act strikes a “neutral compromise” between “’LGBTQ rights’ and religious freedom” as illusory. And Kristen Waggoner, my colleague and CEO at Alliance Defending Freedom, has offered a concise and incisive legal explanation for why Mohler’s fears are well-founded. Which side is right?

As a trial lawyer by trade, I value evidence over rhetoric. And the evidence overwhelmingly supports the act’s critics.

First, the act purportedly was passed to create a backstop to same-sex marriage rights should Obergefell be overruled. The impetus for concern was Justice Clarence Thomas’s lone concurrence in Dobbs v. Jackson Women’s Health Organization, the recent Supreme Court ruling that overturned Roe v. Wade, in which he questioned all precedents grounded on substantive due process. But the Dobbs majority expressly rejected the notion that its opinion casts doubt on any precedents that “do not concern abortion.” So, the premise of the act—that it was needed to shore up same-sex marriage rights against the imminent overturning of Obergefell—was wholly manufactured.

Second, the Act creates no new protections for religious freedom. Section 6(a) of the act affirms that the act will not be construed to overturn protections already available under the Religious Freedom Restoration Act or the First Amendment. I’m not sure why we should celebrate a statute’s affirmation that it doesn’t abolish freedoms protected in the Bill of Rights or repeal a landmark piece of civil rights legislation.

And Section 6(b) confirms that the act cannot be interpreted to force religious institutions, including churches, to perform or participate in same-sex weddings. But ADF (which defends religious institutions all the time) has encountered exactly zero instances of churches being compelled to perform same-sex weddings. So, 6(b) provides a solution for a non-existent problem.

Third, the act creates a new private cause of action. Anytime the federal government empowers plaintiffs’ attorneys to sue more people, we should be wary. In the crosshairs are persons “acting under color of State law.” While that term usually refers to public officials, it’s much broader than most recognize. The U.S. Supreme Court has found that private persons and organizations act “under color of law” when “entwined” with the state. Foundations, private universities, prison ministries, hospitals, and even prison chaplains have met this test. And creative trial lawyers are sure to advocate for its expansion.

So, the act gives activists a ticket to federal court to engage in litigation aimed at pushing faith-based institutions out of the public square. The point of this sort of legal warfare (or “lawfare”) isn’t always to win, but to grind defendants down with relentless litigation. And that seems to be the case here; the Senate rejected amendments to the act that would have eliminated or cabined the private cause of action.

The upshot, then, is that the act was advanced on false pretenses, does nothing to change the status of same-sex marriage, and hands activists a new weapon to pursue and harass their opponents in court. And the so-called religious liberty provisions in the act don’t prevent this result. Rather, they purport not to strip religious institutions of what they already have—RFRA and First Amendment defenses. But a defense is cold comfort when the process is intended as the punishment.

Given this evidence, what explains the sharp divergence of opinion among conservatives who all agree upon the necessity of defending religious freedom?

I think it comes from an honest hope to settle the same-sex marriage issue in a way that protects the conscience of all. If that’s the case, defenders of the act are straining toward a mirage, because its only practical effect is to issue legal hunting licenses to activists bent on silencing debate.

Ryan Bangert is senior vice president of strategic initiatives and special counsel to the president for Alliance Defending Freedom (@ADFLegal).