The Respect for Marriage Act Can’t Answer the Question: What is Marriage?


Ryan Womack

On July 19, the U.S. House of Representatives passed the Respect for Marriage Act (RFMA), a bill designed to enshrine same-sex marriage into the American legal fabric. The bill passed with 267 votes in favor to 157 votes against, with a surprising 47 Republicans voting in favor of entrenching same-sex marriage into law. It’s one of several pieces of unnecessary legislation that codify what is already available by law, such as access to contraception.

Why introduce this new legislation at a time of exorbitant inflation, turbulent international relations, and soaring urban crime?

As the Respect for Marriage Act heads to the Senate, the bill’s proponents see an opportunity to bring enough Republican votes across the aisle for 60 votes in the Senate by claiming that the bill does nothing more than codify Obergefell v. Hodges. But does it?

Let’s be clear here: while the bill is superfluous and ideological, buried in its text are grave threats to religious freedom, free speech, and parental rights. It not only redefines marriage in American law—undermining marriage and family as the most fundamental institution for society—it clothes the federal government with sweeping new powers to discriminate against people and groups who hold sincere beliefs about marriage.

The alleged rationale for concocting such legislation stems from Justice Clarence Thomas’s concurrence in Dobbs v. Jackson Women’s Health Organization where he once again expressed his strong concern about discovering new constitutional “rights” via the Constitution’s protections for due process—a concept known as “substantive due process.” Justice Thomas was not directly questioning the validity of unenumerated rights themselves. He just focused on where in the Constitution the Court should look to determine which rights are protected.

Following Roe’s downfall, some activists scrambled for tools to spark outrage and intentionally misread Justice Thomas’s concurrence to provide new tinder for their activism. But, however unlikely it is for the Court to reconsider previous rulings, proponents of this bill are letting no crisis, real or imagined, go to waste. That’s why they are framing the Respect for Marriage Act as a life-and-death matter of equality, privacy, and human rights. As Speaker of the House Nancy Pelosi deceptively claimed in a speech supporting the bill on the House floor, “These radical Justices took a wrecking ball to precedent of the Court and privacy in the Constitution—and placed even more of our cherished freedoms on the chopping block.”

The Respect for Marriage Act claims to “repeal the [1996] Defense of Marriage Act and ensure respect for State regulation of marriage,” referring to the Clinton-era law that sought to “define and protect” the institution of traditional marriage at a time when only a small minority of Americans—some 27 percent— supported same-sex marriage. One key aspect of the Defense of Marriage Act, known as “DOMA,” was its protection of a state’s right to not recognize a same-sex marriage from another state. A perhaps more vital component was its legal definition of marriage as “only a legal union between one man and one woman as husband and wife.”

DOMA was rendered inoperable after two cases in which the Supreme Court addressed the issue of same-sex marriage. First, in United States v. Windsor (2013), it struck down the DOMA provision defining marriage between one man and one woman. Second, it “discovered” a constitutional protection for same-sex marriage and barred states from legislating according to the traditional definition of marriage in Obergefell v. Hodges (2015), effectively requiring states to recognize same-sex marriages.

But what is marriage? Furthermore, what does it mean to “respect” marriage?

Noticeably, the Respect for Marriage Act demands respect and protection for same-sex marriage, but unlike the law it is meant to repeal, provides no meaning for the term “marriage.” The deception is Orwellian but not surprising given that the same groups pushing the Respect for Marriage Act have a history of usurping language by equivocating terms. Here, “marriage” under RFMA would ultimately mean whatever the most radical state chooses to recognize as marriage—including polygamy.

In the grander scheme, the Respect for Marriage Act is a way of putting an exclamation mark on the sexual revolution and its ideology. RFMA asserts an understanding of marriage that, for good reason, has never existed in American law or even most of human history.

This bill tramples religious freedom in our country. The government would use this new definition of marriage as a cudgel to coerce all Americans into accepting its definition or face punishment by the state. This could include churches, schools, and private associations being stripped of their tax-exempt status or being dragged into court simply because they desire to operate according to their sincere beliefs about marriage.

Alliance Defending Freedom will continue to defend those who believe in marriage as the lifelong union between one man and one woman. Cake artists, graphic designers, and all other Americans have the right to live according to this belief. It is the immoveable truth about marriage.

In addition, ADF and more than 80 allies sent a letter to Senate Minority Leader Mitch McConnell asking him to oppose the Respect for Marriage Act.

“The so-called ‘Respect for Marriage Act’ doesn’t simply codify the Obergefell decision,” said ADF President and CEO Michael P. Farris. “It forces the federal government to recognize without limit any marriage definitions that a state adopts.”

“It also empowers the government to punish millions of Americans who hold decent and honorable beliefs about marriage—beliefs that have existed since time immemorial—exposing citizens to predatory lawsuits and even endangering the nonprofit status of faith-based organizations.”

Conservatives should be encouraged in the truth about marriage and stand against whatever cultural winds that may blow. They should see that it is essential to publicly defend marriage as the foundation of society, as the safe harbor for children, the natural—yet still miraculous—relationship for bringing forth new life, and a necessary component of human flourishing. It is the backbone of the family and of society.

That’s worth our respect, and our defense.

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