On December of 2022, President Joe Biden signed into law the misnamed Respect for Marriage Act (RFMA), which, among other things, repealed the federal Defense of Marriage Act and enshrined same-sex marriage into federal law. The law expands not only what marriage means in the law, but also who can be sued for disagreeing with its new meaning. The newly enacted law also opens the door to litigation against those who disagree with the new definition.
Following the Dobbs v. Jackson Women’s Health Organization decision overturning Roe v. Wade—and particularly Justice Clarence Thomas’s concurrence—some activists expressed concern, however farfetched, that the Court might also overturn other precedents, including Obergefell v. Hodges, which established a constitutional right to same-sex marriage.
These activists thus pressed Congress to pass a bill further ensuring legal recognition of same-sex marriage in federal law. As a result, the Respect for Marriage Act was introduced in July and passed the next day in the U.S. House of Representatives without any committee meetings or opportunity for public input. The lack of transparency amid the push to pass the bill helped disguise the serious concerns many religious Americans, faith-based organizations, and churches had regarding the lack of meaningful religious freedom protections in the legislation for the millions of Americans who believe that marriage is between one man and one woman.
The bill then moved to the Senate. After outcry from these religious individuals and organizations, a small group of senators offered a substitute version that they claimed fixed the bill’s religious liberty problems. However, the changes in the substitute version lacked substance. After rejecting three other proposed amendments that would have added more meaningful religious liberty protections to the bill, the Senate went ahead and passed the legislation with the substitute language on November 29, 2022. Because the Senate amended the bill, it had to be sent back to the House for a final vote. That vote took place on December 8, 2022. President Biden then signed the bill into law on December 13.
While proponents of the bill claimed that it merely enshrines the Obergefell decision, in reality, it potentially jeopardizes the religious freedom of many Americans with sincerely held beliefs about marriage.
The Senate added language to the RFMA purporting to address religious liberty and conscience concerns.
But rather than adding any new concrete protections for religious individuals and organizations, some of the new language simply stated that, if religious beliefs are infringed, individuals and organizations can invoke already existing legal protections, like the First Amendment and the Religious Freedom Restoration Act. As such, this new language did not fix the bill’s negative impact on religious exercise and freedom of conscience. Those targeted under the new law could be forced to spend years in litigation and thousands of dollars in attorneys’ fees to simply protect their fundamental rights.
The revised Senate version added language purporting to protect houses of worship and certain other religious nonprofits from being forced to help celebrate same-sex weddings. This so-called "protection" addresses one of the few settings where same-sex marriage (and accompanying sexual orientation laws) hasn’t created religious liberty problems. Laws are simply not being used to force houses of worship to celebrate same-sex weddings. In its 2018 Masterpiece Cakeshop decision, the Supreme Court said that would violate the First Amendment.
Same-sex marriage has been legally recognized in at least one state since 2003. What is the number of cases challenging a religious organization’s refusal to host a same-sex wedding? Our research uncovered...zero.
In addition to this scenario apparently never arising, this is one context in which existing legal protections (such as the First Amendment and analogous state constitutional provisions) are entirely adequate. No reasonable person thinks the government could get away with forcing houses of worship to do same-sex weddings. So, if activists someday try to force churches to host and perform such ceremonies, they won’t need the RFMA to win their cases.
The RFMA could be used to punish social-service organizations that work closely with governments—like adoption or foster placement agencies that serve their communities in accordance with their religious beliefs about marriage.
This concern isn’t theoretical because we’ve already seen it play out before RFMA passed. The City of Philadelphia halted foster-care referrals to Catholic Social Services (CSS) because CSS wanted to operate in accordance with its religious convictions concerning marriage being only between one man and one woman. This shut down the agency’s ability to place new foster children with loving families in the city. Thankfully, the U.S. Supreme Court intervened, ruling unanimously that Philadelphia couldn’t exclude CSS from serving children and families because of its religious beliefs. Unfortunately, the Court’s decision may not protect faith-based social service agencies from lawsuits brought under the RFMA.
One of the biggest travesties of the RFMA is that it does nothing to strengthen the religious freedom of vital social service organizations like CSS. Instead, it leaves them open to costly and time-consuming litigation that detracts from their important work.
When the IRS determines whether an organization is "charitable" under the Internal Revenue Code, it asks whether the entity’s conduct is "contrary to public policy" or violates a "national policy."
Now that RFMA is the law of the land and may be deemed to embody a "national policy," the IRS could conclude that certain nonprofits are not "charitable" because they’re intentionally not abiding by the federal government’s newfangled policy regarding the definition of marriage. Numerous attempts were made in the Senate to meaningfully address these serious concerns, but they were ultimately and unfortunately rejected.
Now that the RFMA has been enacted, it’s important for your ministry to remain vigilant regarding its religious freedom. One of the best ways to do this is by ensuring your ministry’s governing documents are in order.
While there’s no “silver bullet” for protecting a ministry from every religious freedom threat, there are concrete actions your ministry can take to help protect its autonomy, especially as laws like the RFMA threaten that freedom.
Members of the ADF Ministry Alliance have access to attorney-approved sample statements to help their ministry construct sound governing documents and create a firm legal foundation. Additionally, as a member, our attorneys can review your governing documents and discuss recommendations tailored to protect your ministry’s religious freedom.
Religious nonprofits that live out their views on marriage while working closely with the government may be vulnerable to litigation under the RFMA. However, mere receipt of government money or benefits generally does not automatically subject organizations to such lawsuits. There has to be a greater degree of interaction or “entwinement” with the government. Ministries can contact the ADF Ministry Alliance team if they need more information by submitting a legal request.
If religious organizations face threats over their belief and practices regarding marriage or challenges to their tax-exempt status, ADF is prepared to defend their rights.
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We continue this month with our “A Vision for Freedom” series, highlighting ADF’s “Generational Wins” initiative. Generational Wins are significant legal and cultural victories, rooted in the truth of Scripture, that can change the trajectory of law and culture for decades. Generational Wins encapsulate five strategic goals that, with God’s help, will make a lasting impact on our country now and in the future. Click here to read about the Generational Wins we’re working to achieve together.Continue reading