Editor’s note: This is the fourth opinion piece in a new series on religious liberty authored by BJC Fellows and made possible by a grant from the Prichard Family Foundation.
For years, media narratives have cast religious freedom advocates in an irreconcilable battle with proponents of LGBTQ rights, so it can be hard to believe there’s anyone in the middle working toward mutual respect.
But scholars, advocates and stakeholders have been carrying on a multi-year dialogue on how to legislate that very thing. In December 2022, that dialogue had its biggest moment since 2015 when Utah passed a law simultaneously protecting LGBTQ rights and religious liberty.
In December 2022, the bipartisan passage in Congress of the Respect for Marriage Act was a critical inflection point.
While previous bills hoping to recognize both religious liberty and LGBTQ nondiscrimination, such as the Fairness for All Act, faced criticism from both sides of the aisle, the Respect for Marriage Act garnered praise, including from top LGBTQ rights organizations and some conservative religious groups. The Human Rights Campaign called the Act a “historic victory.” The Church of Jesus Christ of Latter-day Saints called it “historic and commendable.” President Biden remarked at the bill’s signing that it was a “vital step toward equality, toward liberty and justice, not just for some, but for everyone.”
So what does the Act do? As its name suggests, it ensures respect for differing opinions regarding marriage — opposite-sex marriage and same-sex marriage alike. And unlike most laws Congress passes, its text is only three pages long. It begins with Congress’ official motivation in adopting the legislation. It declares that “no union is more profound than marriage,” that “diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises,” and that “such people and their diverse beliefs are due proper respect.” It also declares that interracial and same-sex couples “joining in marriage deserve to have the dignity, stability and ongoing protection that marriage affords to families and children.”
In a move of solidarity with the LGBTQ community, the law takes the Defense of Marriage Act officially off the books. That law had prohibited federal recognition of same-sex marriages and permitted states to refuse to recognize same-sex marriages, and it was invalidated by the U.S. Supreme Court’s 2013 and 2015 decisions in U.S. v. Windsor and Obergefell v. Hodges.
No doubt motivated by fear that Obergefell’s constitutional right to marry could meet a similar fate as the right to an abortion did last year in Dobbs v. Jackson Women’s Health Organization, the new law then codifies interstate recognition of same-sex marriage, removing the issue from the Supreme Court’s constitutional interpretation. No state may refuse to recognize another state’s marriage of any two individuals “on the basis of sex, race, ethnicity or national origin.”
The Respect for Marriage Act focuses on religious concerns regarding marriage in a section titled “No Impact on Religious Liberty and Conscience.” That section states the act cannot “be construed to diminish or abrogate a religious liberty or conscience protection” available under the Constitution or federal laws, such as the Religious Freedom Restoration Act. The law also assures religious organizations will not be required to serve, solemnize or celebrate a marriage with which they disagree. Tax-exempt status for organizations with certain views regarding marriage also is safeguarded.
Much of the media coverage about the Respect for Marriage Act focused on how the law would function in an alternate future where the overruling of Obergefell is not just a fear, but a reality. Absent the act’s protection, same-sex marriage would, once again, be a state-by-state issue, as it was in the years leading up to the Obergefell decision. States could decide whether to recognize same-sex marriages performed in their state and those performed in other states.
“The religious liberty protections in the Respect for Marriage Act will remain.”
But with this new law, states must recognize same-sex marriages performed in other states, even if the state itself chooses not allow those marriages within its boundaries. In the unlikely event Obergefell is overturned, this could lead to variation across states which, before Obergefell, had statutes or constitutional provisions prohibiting same-sex marriages.
But whether in our own reality or in a post-Obergefell future, the religious liberty protections in the Respect for Marriage Act will remain. It is the first federal law to recognize as decent, honorable and deserving of legal protection the view held by some Americans that marriage should be a one-man-one-woman union and the view of other Americans that marriage may be a union of two individuals of the same sex.
Interestingly, this is another codification of Obergefell, which stated “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises,” a view “held in good faith by reasonable and sincere people here and throughout the world.”
As a Latter-day Saint committed to LGBTQ nondiscrimination, it is clear to me the Respect for Marriage Act is more than just messaging. As one scholar said, the act’s “important lesson is that civil rights aren’t like colliding trains, where one civil right has to take precedence over another.”
Other scholars have joined in, calling the act’s “protection of both sides in the conflict between LGBTQ equality and religious freedom” “a worthy goal, consistent with the historic purposes of civil liberties and civil rights” that “reduces human suffering,” “protects against hostile and burdensome regulation” and “reduces resentment and cultural conflict by assuaging people’s existential fears that a hostile majority will attack their most deeply held commitments.”
Let the Respect for Marriage Act be a sign of more to come for religious liberty, LGBTQ nondiscrimination and our country’s commitment to pluralism.
Tanner Bean is an attorney at the Salt Lake City law firm of Fabian VanCott and is licensed to practice in Utah and Idaho. His practice focuses on employment law, appeals and litigation, as well as the intersecting areas of religious liberty and LGBTQ discrimination. He is a BJC Fellow from the class of 2018. The views expressed here are his own.
BJC Fellows come from diverse educational, professional and religious backgrounds to learn in an intensive education program that equips them for advocacy to protect religious liberty. Learn more about the program here.
Previous articles in this series:
Faith freedom for all calls for justice and reconciliation | Opinion by Sabrina Dent
The stupidity of Christian nationalism | Opinion by Claire Hein Blanton