David French usually manages to judge the glass as mostly full when analyzing progressive actions or legislation. In the most recent example, he lauded the Senate version of the Respect for Marriage Act in The Atlantic as reflecting the genius of American “pluralism,” that is, protecting same-sex marriage while also ensuring that religious believers are allowed to refuse participation in ways that impinge upon their faith beliefs. He wrote:
The provisions, taken together, roughly preserve the legal status quo. At the risk of being overly simplistic, advocates for same-sex marriage are concerned that the Supreme Court could take a sledgehammer to Obergefell. Advocates of religious liberty are concerned that Congress could take a sledgehammer to religious freedom. The bill addresses both concerns.
Well, as to religious freedom, no it doesn’t. Indeed, the religious freedom protections in the bill are thin and would be easily rendered inoperative.
Here is the pertinent portion of the legislation (H.R. 8404) that French believes offers robust protection of religious freedom (my emphasis):
SEC. 6. NO IMPACT ON RELIGIOUS LIBERTY AND CONSCIENCE.
(a) IN GENERAL.—Nothing in this Act, or any amendment made by this Act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.(b) GOODS OR SERVICES.—Consistent with the First Amendment to the Constitution, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action.
Let’s take a look first at part (a). Under current federal law, there are two primary protections for religious consciences, the “Free Exercise Clause” of the First Amendment and the Religious Freedom Restoration Act. Of the two, only the RFRA offers moderate protection.
As to Constitutional rights, the Supreme Court ruled in Employment Division v. Smith that the Free Exercise Clause is not violated when a “law of general applicability” infringes on the religious conscience of individuals if the state has a rational basis for enacting the statute or regulation. That means the Constitution would offer scant protection as any laws that would infringe on the religious consciences of dissenters to same sex marriage would surely be generally written and not focused specifically against religious institutions and faith-based organizations.
In other words–unless Smith is overturned, which is possible and to be devoutly wished–the Constitution might offer no protection for religious conscience in such cases.
The RFRA could. But there are problems here too.
- The Democrat Party is determined to gut the RFRA around issues of sexuality, sexual orientation, sexual identity, and etc.–as The Equality Act would have done had it passed the Senate as it did the House. With Republicans controlling the House, the RFRA is safe for two years. But after that, who knows? If Democrats have a huge victory in 2024, it would be toast, and with it, the protections this bill provides would evaporate.
- The RFRA is statutory and must be applied case, by case, the outcome determined by the unique facts of each circumstance. As we have seen in earlier RFRA cases, judges often decide what factors constitute a violation of the RFRA differently.
- We know that LGBT activists and supportive legislators and regulators engage in active “lawfare,” that is, bringing civil cases or regulatory enforcement actions that are expensive and onerous to defend against. (See. for example. the repeated cases brought against Jack Philips, the “Colorado cake baker,” despite his winning a case in the Supreme Court.) Nothing in this statute blunts or protects religious dissenters from this form of harassment and intimidation.
- The federal RFRA does not apply to state or local statutes and regulations (which French acknowledges). This means that individuals and organizations in states without their own version of the RFRA could have their free exercise of religious beliefs impeded by state laws and rules of general applicability.
The legislation’s protection for religious organizations is also scant. It only protects organizations against infringement of religious beliefs in the context of providing “services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.” There are many circumstances in which federal, state, or local laws and regulations around same sex marriage would violate institutional religious beliefs beyond “solemnization or celebration of a marriage.”
How would this be remedied? It seems to me that at a minimum, the precepts of the RFRA would have to be included in the bill itself–rather than merely referenced generally—so that if the RFRA is ever gutted, the protections would remain. Second, the RFRA protections should be written so as to apply to the states as well as the feds, as the RFRA once did. Finally, those protections should not be severable from the rest of the law, meaning if the religious protections fell, the entire law would go with it.
Without those changes, it seems to me that the “plurality” protections in the bill about which French is so optimistic are more mirage than reality.