Conservatives Must Reject the So-Called “Respect for Marriage Act”

July 26, 2022
Washington, DC

The inaptly-named Respect for Marriage Act seeks to repeal the Defense of Marriage Act of 1996 (DOMA) and codify the U.S. Supreme Court’s decision in Obergefell v. Hodges (2015) to legalize same-sex marriage. Such a troublesome policy pronouncement by Congress in favor of same-sex marriage would not only legislate a harmful, anti-family policy but also would unleash further religious freedom violations, threaten the tax-exempt status of religious entities, and wrongly marginalize social conservatives.

Even before Obergefell, government actors were using the levers of state power to go after those who disagreed with this new orthodoxy:

  • Barronelle Stutzman, the Washington state florist who was sued by the state and would eventually be forced to sell her business in order to avoid government confiscation of all of her personal assets, simply because she could not make custom floral arrangements for her long-time customer’s same-sex wedding.
  • Aaron and Melissa Klein, the owners of Sweetcakes by Melissa, who were sued by the state and fined $135,000 for declining to bake a custom cake for a same-sex wedding.
  • Jack Phillips, the Colorado baker who has been to the U.S. Supreme Court twice to defend his First Amendment right not to make expressive cakes celebrating same-sex marriages. He is now being sued a third time by the state because he cannot create a gender transition cake in good conscience.
  • Dick and Betty Odgaard, whom the Iowa Civil Rights Commission tried to force to rent their gallery space (a former church) to a same-sex couple for said couple’s wedding ceremony. As a part of a settlement agreement to end the litigation, Dick and Betty agreed to pay the couple thousands of dollars and not host any more weddings.
  • Cynthia and Robert Gifford, who were fined $13,000 and ordered to implement staff re-education training classes that contradicted the couple’s beliefs on marriage. The couple had been willing to make their farm available for a same-sex wedding reception but not the ceremony itself.
  • A Methodist congregation that ceased making a pavilion located on church-owned property available for weddings after the New Jersey Division on Civil Rights held that the church was required to host civil unions.
  • Atlanta fire chief Kelvin Cochran, who was suspended and ultimately fired from his job for authoring and giving away, on his own time, a devotional book that touched on the biblical model of marriage being one man and one woman.
  • Kim Davis, the Kentucky clerk who declined to sign the marriage license (as then required by state law) for a same-sex couple. She was willing for her staff to sign the form, but that accommodation was not allowed by state law at the time. Writing about her case, Justice Clarence Thomas said, “those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul” of Obergefell “and its effect on other antidiscrimination laws.”
  • The (reportedly dozens) of magistrates in North Carolina that the attorney general forced to resign in 2014 for refusing to perform same-sex marriages. One finally won her case in 2018 for $300,000.
  • The judge in Washington state who was admonished by the state bar for daring to express his preference not to perform same-sex marriages.

Yet that was only the beginning. The Court’s decision in Obergefell unleashed religious freedom violations across the land, launching a new era of harassment and coercion of millions of Americans who hold a sincere religious belief or moral conviction that marriage is, or ought to be, between one man and one woman. President Barack Obama’s solicitor general signaled at this during oral argument in the case, saying that it was “certainly going to be an issue” if schools with a moral code of conduct prohibiting extramarital sexual involvement, including homosexuality, wanted to retain their tax-exempt status in the wake of the ruling.

The Respect for Marriage Act will further usher in this new era of oppression. Not only does it increase the threat of legal liability for those who decline to affirm same-sex marriage, but it would help cement a “national public policy” on same-sex marriage that would have drastic consequences. In Bob Jones University v. United States, the Supreme Court looked at whether a school’s actions were contrary to a “fundamental national public policy” to determine whether tax exemption could be denied to that school. If this bill becomes law, the executive branch could argue that same-sex marriage is a “fundamental national public policy” to justify the denial of the tax-exempt status of schools and other entities that decline to affirm same-sex marriage.

DOMA, which recognized natural marriage in federal law, was approved in 1996 by overwhelming bipartisan majorities in both chambers of Congress (342-67 in the House, 85-14 in the Senate). Nothing has changed about the science behind natural marriage; it is still in children’s best interest to be raised in homes with a married mother and father. This was true thousands of years ago, twenty-five years ago, and is still true today.

Further, the Respect for Marriage Act doesn’t “merely” codify United States v. Windsor, which struck down Section 3 of DOMA; it fully repeals DOMA, which has never been done. Under this bill, if any state recognized polyamorous marriages, the federal government would be forced to recognize them as well (as a matter of federal law).

Natural marriage is part of the very fabric of a free society. It is a pre-political institution that has existed for millennia. It was wrong of the Supreme Court to rule against the federal definition of marriage in Windsor, it was wrong to overrule over 30 states that recognized natural marriage in Obergefell, and it is wrong for Congress to attempt to legislate the redefinition of marriage now.

The Respect for Marriage Act must be rejected.


The Honorable Edwin Meese III
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Office of Management and Budget (2020-2021)
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