The Senate is scheduled to vote to proceed later today to the bill that essentially codifies the Supreme Court’s Obergefell decision establishing a right to same-sex marriage.
There is no real chance the Supreme Court would overturn Obergefell because no state is trying to overturn it, and in the extremely unlikely event a case challenging Obergefell made it to the Supreme Court, the reliance interests would make the case for upholding precedent much stronger than they were in the Dobbs case.
The Senate’s same-sex marriage bill has picked up at least a handful of GOP senators, who say it now protects religious liberty. Here’s the text of the bill (emphasis added):
(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.
As you can see, that language only applies to the “solemnization or celebration of a marriage” and “nonprofit religious organizations”—not to the likes of Jack Phillips, the Christian baker in Colorado who was sued for conscientiously objecting to decorating a cake for a same-sex wedding. True, the Senate bill does not gut the Religious Freedom Restoration Act. And Phillips has been able to defend himself in court under the First Amendment. But as advocates of religious liberty have argued, the process is the punishment.*
Phillips has had his life upended by years of litigation, and while Senate’s bill affirms a right to same-sex marriage, it does not affirm the rights of conscientious objectors like Phillips—rights he is still fighting to defend in court. Nor does it prevent the government from discriminating against religious nonprofit adoption agencies that uphold the belief that marriage is a union between one man and one woman.
So it is simply not true to say that the bill protects religious liberty. (If you want to see legislation that would actually protect conscientious objectors, look at Utah senator Mike Lee’s First Amendment Defense Act.) Advocates of the same-sex marriage bill can arguably claim their bill maintains a status quo under which religious liberty is threatened, but opponents fear statutory blessing of the Obergefell decision will actually make it more likely that religious individuals and institutions will face discrimination.
*Correction: This post originally stated that Phillips defended himself in federal court under the Religious Freedom Restoration Act. In fact, that case was decided under the First Amendment.