Why the Senate’s marriage bill is splitting Republicans and the religious right

The Respect for Marriage Act is chugging along toward final passage in the Senate today with bipartisan support, but some conservatives are still trying to sell their colleagues that it doesn’t go far enough in addressing religious liberties.

The bill leaped a procedural hurdle with 61 votes on Monday after Democrats agreed to allow votes this afternoon on three Republican amendments — one by Sen. Mike Lee, R-Utah, another by Sen. James Lankford, R-Okla., and another by Sen. Marco Rubio, R-Fla. — designed to expand its protections for opponents of same-sex marriage.

The legislation is essentially a negotiated peace treaty between religious conservatives and LGBTQ Americans on same-sex marriage, allowing each side to move on to other civil rights debates where they’re still in conflict.

But what does peace mean exactly? The terms of surrender in the marriage wars are still in dispute on the right, which is why some conservatives are wary of signing on without either further reassurances or a radically different framework altogether.

To a number of prominent religious groups opposed to same-sex marriage — most notably the Church of Jesus Christ of Latter-day Saints and the National Association of Evangelicals, who have both endorsed the bill — the deal is a way to lock in the current status quo in the courts for the long haul. In exchange for codifying marriage rights, which are already the law of the land after Obergefell, the bill clarifies that faith institutions and non-profits can’t be compelled to participate in “the solemnization or celebration of a marriage.”

But it doesn’t wade into other territory that’s led to court fights in recent years, like, say, a private bakery refusing to sell a wedding cake for a service.

“This is not a perfect bill; compromises rarely are,” said University of Virginia law professor Douglas Laycock, who signed onto a letter with other scholars of religious liberties law in support of the bill. “But it is the first serious effort at compromise at the federal level, and potentially a model for further compromises.”

Importantly, supporters say, the bill text also puts lawmakers on the record saying “diverse beliefs about the role of gender in marriage are held by reasonable and sincere people,” which demonstrates that Congress views opposition to same-sex marriage differently than racial discrimination, where the courts have set stricter limits on religious objections. Religious schools are allowed to ban same-sex dating and maintain their tax-exempt status, for example, but not interracial dating.

But some conservatives argue any durable peace needs to go much further and apply to a much broader class of religious Americans and institutions.

The most significant challenge comes from Lee, whose amendment would bar the federal government from taking any kind of “discriminatory action” against persons or organizations based on their belief in traditional marriage, including revoking tax-exempt status or denying grant money. According to a letter signed by 21 Senators backing the amendment, the changes “would affirm that individuals still have the right to act according to their faith and deepest convictions even outside of their church or home.”

Roger Severino, vice president of domestic policy at the conservative Heritage Foundation, has argued amendments like Lee’s are necessary to protect the “bakers, photographers, web designers, printers, meeting halls, bed and breakfasts, and florists” who have been targeted in lawsuits for not providing services for same-sex marriage ceremonies “with decidedly mixed success for people of faith.”

Many of those fights are still live issues and Democrats and civil libertarians worry Lee’s amendment, which resembles past proposals, is so broadly worded that all manner of discrimination could be justified on religious grounds across the public and private sector.

“The bottom line is that these proposals are not about preventing the Respect for Marriage Act from imposing new burdens on religious liberty, but rather about locking in new religious exemptions to allow discrimination,” Jennifer Pfizer, chief legal officer of pro-LGBTQ rights group Lambda Legal, said in an email.

Lee’s amendment would almost certainly unravel the bill if it passed. Under the terms of the deal negotiated last night, it would require 60 votes to pass versus just a majority for the other two.

But other Republican Senators also worry that activists might use the bill’s codification of marriage rights to go on offense against a broader array of institutions and services, even if that’s not the bill’s intent. Sen. Rubio’s amendment would strip out a provision of the bill that allows private citizens to sue to enforce its provisions, which some conservatives have argued could be used in unpredictable ways. Sen. Lankford’s amendment touches on the same provision and would further specify what types of institutions are affected by the bill.

Critics of the bill have also argued the Respect For Marriage Act is unnecessary, since the Supreme Court is unlikely to overturn Obergefell in their view, despite Justice Clarence Thomas’ public indication he’d like to review it.

But the current makeup of the court cuts both ways — supporters of the bill say the 6-3 conservative Supreme Court has already taken a broadly protective stance towards religious liberties, which makes piling on more exemptions redundant.

The vast majority of the public debate around the bill has been over finding the right legal balance between protections for same-sex marriage and for religious groups and individuals. But there is a vocal minority of social conservatives who argue that conceding failure in the debate over marriage equality is a mistake in its own right.

“To prefer the old definition is not to disregard same-sex partners whose love, loyalty, and friendship are deep and enduring,” the National Review’s editors wrote in an op-ed opposing the bill on Monday. “But their interests could have been accommodated without redefining marriage, and in principle still could be.”

• The New York Times profiled Sen. Tammy Baldwin, D-Wisc. in August, the first openly LGBTQ American elected to the Senate, who has led bipartisan talks over the bill. After her Republican colleague, Sen. Ron Johnson, R-Wisc. said he’d support the bill if nothing “obnoxious” was included, she said she would try, but “we may differ on what constitutes ‘obnoxious.’” Sure enough, Johnson later rejected the bill, saying he supported the Lee amendment.