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of 2022, President Joe Biden signed into law the misnamed Respect for Marriage Act (RFMA), which, among other things, repealed the federal Defense of Marriage Act and enshrined same-sex marriage into federal law.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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Alliance Defending Freedom and many of its allies opposed the Respect for Marriage Act for a variety of reasons.
First, the bill was entirely unnecessary. Those who supported it claimed that Congress needed to enact this law to protect the alleged right to same-sex marriage, which the Supreme Court created in Obergefell v. Hodges in 2015. They claimed that last year's Dobbs decision, which overturned Roe v. Wade, somehow jeopardized this alleged right to same-sex marriage, and they have expressed an unfounded fear that the Court is poised to overturn Obergefell. They accordingly sought statutory protection for same-sex marriage to cement the alleged constitutional right to same-sex marriage.
However, in reality, the chances of the Supreme Court overturning Obergefell are (unfortunately) slim to none. The RFMA was completely unnecessary.
In addition, the RFMA could have adverse consequences, particularly for religious liberty. First, it creates a new obligation on both governments and organizations working closely with governments to recognize, acknowledge, and support same-sex marriage. This is concerning because many religious organizations working closely with the government cannot do that in good conscience.
Second, the new law’s enforcement mechanism is concerning. If an individual or group cannot in good conscience comply with the obligation to recognize same-sex marriage, the federal government or an activist organization could haul them into court.
Third, the bill could undermine and worsen how courts analyze religious freedom cases. Now that the RFMA is the law of the land, it helps create a lens through which religious freedom cases could be viewed—and in a less favorable light.
Finally, the Respect for Marriage Act gives the Internal Revenue Service additional ammunition to eliminate the tax-exempt status of religious nonprofits that don't agree with the federal government's new definition of marriage.
Ministries acting in concert with the government to pursue some shared goal are most likely to be deemed "acting under color of state law." The RFMA requires such groups to recognize same-sex marriage. Organizations like foster and adoption care and placement agencies are most at risk. Again, this is because they're the type of nonprofit organization that often works closely with the government.
Religious schools, houses of worship, mosques, synagogues, and churches are far less likely to be challenged under the RFMA for not recognizing same-sex marriage, because their relationships with government rarely are “entwined” enough to transform them into “state actors” subject to this aspect of the RFMA.
Thankfully, the RFMA’s enactment doesn't require ministries to create new governing documents. That said, ministries should have the types of documents ADF routinely advises ministries to have, including a statement of faith, a statement on marriage and human sexuality, a facility use guide, and more. If you would like more information about how to create these important documents, please reach out to us.
Pastors should continue to have the freedom to discuss marriage as a one-flesh union between a man and a woman. Thankfully, there's nothing in the RFMA that hinders someone's ability to dissent from the emerging orthodoxy about same-sex marriage as long as they're not working closely with the government. The RFMA imposes the obligation to recognize same-sex marriage on entities "acting under color of state law"—in other words, a “state actor.” It's extremely rare for a church, a mosque, a synagogue, or any house of worship to be considered a state actor.
It's also important to note that while the RFMA creates an obligation to recognize same-sex marriage, that doesn't mean it compels them to speak out in favor of same-sex marriage. The Respect for Marriage Act does not punish speaking out in favor of marriage as God created it.
The RFMA doesn't directly impact the freedom of houses of worship and other ministries to hire and fire according to their religious beliefs, including religious beliefs about marriage and sexual morality.
However, the IRS could use this law to help remove the tax-exempt status of those who adhere to the traditional understanding of marriage. What could provoke the IRS to consider this sort of drastic action? It could be decisions surrounding employment. While there's nothing concrete to this threat right now, hiring and firing decisions might provoke the IRS to act on this issue. (Of course, ADF is not recommending that religious organizations capitulate on this issue.)
No. While the RFMA imposes an obligation on many to recognize and acknowledge same-sex marriage, it doesn't impose that obligation on everyone. It only imposes it on those who are "acting under color of state law." And in almost every circumstance imaginable, a house of worship or religious school is not a state actor. This is because they rarely work closely enough with the government to face this obligation. It's important to remember that mere receipt of funds from the government doesn't transform a private organization into a “state actor.”
The fact remains that the First Amendment’s Free Speech, Free Exercise, and Establishment Clauses clearly protect houses of worship from being forced to perform same-sex wedding ceremonies. This constitutional reality is codified in the RFMA. The law declares that the government cannot force a house of worship or a religious school to solemnize or perform a same-sex wedding ceremony.
The RFMA should not affect how a church or ministry can use its facilities. The rationale for this is similar to the previously answered question. The Respect for Marriage Act imposes an obligation only on the government and those working closely with it. When it comes to facility use, it's hard to imagine circumstances in which houses of worship could be deemed a state actor. As previously noted, both the First Amendment and a provision of the RFMA offer explicit protection from being forced to recognize, solemnize, or perform a same-sex wedding ceremony.
The RFMA doesn't directly require the Internal Revenue Service to take away the tax-exempt status of nonprofits that maintain biblical views on marriage. However, a threat still exists.
When the IRS is deciding if a particular nonprofit is eligible for tax-exempt status, it asks whether the organization is "charitable." How do they decide whether an organization is charitable? One of the questions they ask is whether the organization acts consistently with "public policy"—an imprecise term open to interpretation. ADF is concerned that the IRS could point to the RFMA as a national, established public policy that same-sex marriage is a societal good that ought to be recognized and even embraced. The IRS could conclude that those who don't recognize or support it fail to act according to national public policy. While the RFMA does not directly require the IRS to take away an organization's tax-exempt status, it could use the RFMA as a component of the case that it might build against nonprofits holding biblical views on marriage.
In theory, Congress could repeal the RFMA and restore the freedoms that are, at the very least, threatened by the law. Unfortunately, that seems unlikely.
What Congress could do to protect against the potential threats of the RFMA is pass legislation introduced in past Congresses called the First Amendment Defense Act. The First Amendment Defense Act protects individuals and organizations from punishment by the government due to their views on same-sex marriage. While we remain hopeful that Congress may someday pass this law, we don't expect this to happen with the current makeup of Congress. This legislation is certainly worth advocating for in the meantime.
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