The Respect for Marriage Act and Religious Freedom: Responding to Roger Severino

Roger Severino of the Heritage Foundation deserves credit for attempting to make serious arguments against the Respect for Marriage Act (RMA). In fact, his arguments are probably the most substantive we have seen. Still, Severino misses the mark, mostly by (ironically) construing the RMA like a creative left-wing litigator. But courts will quickly reject these theories if progressive advocates assert them. And, on the other hand, religious liberty litigators around the country will soon be invoking the RMA to protect people and institutions of faith. Why? Because the RMA advances religious freedom.

Conservative religious organizations supporting the RMA’s protections are trustworthy

Severino takes an unfair shot1 at religious organizations that have expressed support for the RMA’s religious freedom amendments, implying they’ve caved to political pressure or changed their religious doctrine. This is far from the truth. The Church of Jesus Christ of Latter-day Saints, which Severino calls out, stated in a press release on the RMA amendments that its “doctrine . . . related to marriage between a man and a woman is well known and will remain unchanged.” The letter to Congress by these religious organizations states, “All our organizations hold to an understanding of marriage as between one man and one woman.”

So, what’s going on? Have these conservative faith groups just lost their courage? Are they too naïve to understand that the RMA will hurt their legal rights? Of course not. These groups know that constant apocalyptic rhetoric and the association of religious liberty with total hostility to the aspirations of gay people is only turning the public against traditional religion and poisoning the possibility of livable compromises that protect religious rights. That, not the RMA, truly endangers religious liberty.

In other words, the religious organizations supporting the RMA have concluded that perpetual culture war battles over gay marriage isn’t a winning strategy. It might be a good strategy for groups on the right and left that profit from the culture war. But it is a very bad strategy for religious groups who must live with the reputational and spiritual consequences.

This reality was brought into sharp focus by the Supreme Court’s ruling in Obergefell v. Hodges that gay marriage must be recognized equally by all governments in the United States. Period. Like it or not, that’s now constitutional law. And it’s not going to change in the lifetime of anyone reading this, if ever. Justice Clarence Thomas’s recent riff in a concurring opinion in Dobbs (the abortion case) suggesting cases like Obergefell be revisited got no support from any other justice.

Overturning Obergefell is a pipe dream. And 70% of Americans are fine with that. Any strategy to protect religious freedom must appeal to a large fraction of that 70%.

Same-sex couples now want assurances their lives and reliance interests won’t be turned upside down. That’s understandable, even if you theologically oppose same-sex marriage. So, the RMA affirms what is already the law under Obergefell and what will remain the law: that government officials must recognize lawful same-sex marriages from other jurisdictions. But more moderate Republican and Democratic senators have changed the model. The model of the Senate RMA is the bi-partisan abandonment of the disastrous take-no-prisoners Equality Act model. There’s a new model now: LGBT rights must be accompanied by robust religious freedom rights, or they can’t pass.

Leading pro-religious liberty scholars are trustworthy

Severino expresses “respect” but then does not seriously engage with the preeminent legal scholars who support the RMA’s religious freedom protections. These scholars may not be household names on Capitol Hill. But they are on the short list of the most influential voices in the legal academy and the courts.

Professor Doug Laycock is one of the most respected religious liberty scholars and advocates in the United States, arguing before the Supreme Court in some of the most important religious freedom victories in a century. He is the author of one of the most widely read and cited religious liberty textbooks. He was one of the principal public advocates for the Religious Freedom Restoration Act in 1993 and has continued to publicly defend RFRA from unfair charges from the political left. He argued two of the most foundational religious liberty cases before the Supreme Court: Church of the Lukumi Babalu Aye (the premier case on unconstitutional religious targeting) and Hosanna-Tabor (the premier case on the hiring rights of religious organizations). Both of those cases were unanimous Supreme Court victories.

Professor Thomas Berg co-authored an amicus brief with Laycock on behalf of multiple religious organizations in the Supreme Court’s most recent unanimous Supreme Court victory: Fulton v. City of Philadelphia (right of faith-based adoption agencies). The Supreme Court’s decision closely tracked the Berg-Laycock analysis. Berg and Laycock also helped author a brief with many religious organizations in Espinoza v. Montana Department of Revenue, a 5-4 Supreme Court landmark victory about the rights of faith-based organizations to not face discrimination in government funding.

Professor Carl Esbeck, himself a premier religious liberty scholar relied on by advocates for decades, is a theologically conservative evangelical and advises the National Association of Evangelicals and many other religious organizations on religious liberty issues. He too has filed dozens of briefs in the Supreme Court and other federal courts in key religious liberty cases.

Professor Robin Fretwell Wilson is one of the most prolific and influential experts in the legal academy on multiple topics, including the conflicts between religious liberty and same-sex marriage. Most notably, she authored a seminal text, “Same Sex Marriage and Religious Liberty: Emerging Conflicts” with Laycock in 2008. In 2018, she authored “Religious Freedom, LGBT Rights, and the Prospects for Common Ground” with Yale Professor William Eskridge, a leading voice in the academy for LGBT Rights.

These scholars do not just advance religious freedom from the friendly confines of a conservative think tank, they do it in a progressive and pervasively secular academy where they are minority voices. Simply put if you could hire a group of experts to tell you what a proposed law means for religious liberty, this is who you would want to hire. And all of them enthusiastically support and endorse the RMA’s religious liberty protections.

Fact-Checking Severino on the Respect for Marriage Act.

Where Severino is right about the RMA.

Severino honestly admits that the RMA contains some important protections:

  • He admits that the RMA “explicitly would preserve application of the Religious Freedom Restoration Act” (RFRA) to issues arising under the bill. Preserving RFRA is enormously important. It is the most powerful and sweeping religious liberty standard in federal law. No religious liberty claimant opposing a federal law has ever lost in the Supreme Court under RFRA.   Not surprisingly, many progressives want to gut it, as they tried to do in the Equality Act. The RMA preserves RFRA.
  • Severino admits that the language of “the bill clarifies through a rule of construction that it does not, by its own operation, revoke tax-exempt status for dissenting religious organizations ” This admission rebuts the claim repeatedly made by other detractors that, if enacted, the bill itself would lead to the revocation of tax-exempt status. (More on tax-exempt status below.)
  • Severino also admits the “bill wouldn’t by its own operation revoke licenses, grants, accreditation, or other benefits for religious organizations that hold fast to man-woman marriage …” This too rebuts the claim by numerous detractors that the bill would lead directly to such revocations.
  • Contrary to claims made by other opponents of the bill, Severino admits that “the risk that an average religious institution would be deemed a state actor”—and hence the risk of RMA lawsuits against dissenting believers and organizations of faith—”is rather low …” He’s right. Actually, the risk is extremely low. (More on that below too.)
  • Severino further admits that the bill “would provide additional protections for explicitly religious organizations to decline to participate in same-sex marriage celebrations and would bar activist lawsuits on this question.” This is an admission that the RMA would significantly protect a wide swath of religious organizations – i.e., all those that are “explicitly religious,” which is the vast bulk of them.

Severino’s admissions are important because they show that even those who say the RMA’s religious protections don’t go far enough must admit that it contains real protections. Advocates can argue that the RMA should have even more protections, but no knowledgeable attorney or scholar can credibly say the RMA is an attack on religious liberty. The analysis of those that do use that sort of overheated rhetoric is not trustworthy.

Where Severino is wrong about the RMA.

Now to respond to the specific, narrow areas where Severino claims the RMA falls short. We’ll have to get a bit legalistic since Severino is relying on legal distinctions. In short, Severino’s fears are either misplaced or already exist under current law regardless of the RMA.

Severino Claim 1: The RMA’s Congressional finding that good people can have good beliefs that disagree with same-sex marriage is legally meaningless.

Response: False. The fight over same-sex marriage boiled down to a fundamental disagreement about whether gender is essential to the definition of marriage. Is marriage by nature and divine decree a gendered institution (male-female only) or a non-gendered one (male- male, female-female)? That was the real battle. As soon as the Supreme Court ruled in Obergefell that same-sex couples had a fundamental right to marry, torrents of defamatory propaganda were unleashed accusing those who believe marriage is a gendered, opposite-sex institution of being essentially bigots—unreasonable, insincere, ignorant people with bad, dishonorable beliefs destined for the dustbin of history, and the sooner the better.

Advocates did that precisely because they wanted to equate beliefs in traditional marriage as the moral and legal equivalent of racism. Why? Because doing so would lay the groundwork for the Supreme Court to hold—as it properly has in cases involving white supremacy—that the Constitution does not afford the practice of such beliefs any protection. That’s what happened in the Bob Jones case, where the Supreme Court upheld the revocation of a religious school’s tax- exempt status due to its racist ban on interracial dating. And that’s what progressives sought to do with the Equality Act, which not only left out but also would have revoked religious liberty protections. If they could make opposition to same-sex marriage the legal equivalent of racism, then government would have a compelling reason to suppress practices based on such alleged bigotry.

The RMA refutes the dangerous slur that those who believe in a gendered understanding of marriage are akin to racists. It contains an express Congressional finding that “reasonable and sincere people based on decent and honorable religious or philosophical premises” can hold different “beliefs about the role of gender in marriage.” This language closely tracks Justice Kennedy’s dicta in Obergefell. It means that those who believe the role of gender is essential to marriage, as the largest religions in the world teach, are good people with good beliefs. Congress is putting a non-binding sentiment from Obergefell into federal law with bi-partisan support.

As Laycock and the scholars put it: “[t]his statement of respect for the belief in male-female marriage plainly distinguishes it from beliefs opposing interracial marriage, which receive no such affirmation (even as the statute protects interracial marriages).”

And if, as Congress says in the RMA, those who believe exclusively in traditional male-female marriage are good people with good beliefs, then what constitutionally compelling justification can government have for targeting and punishing the practice of those beliefs as the equivalent of racism? The answer is none.

Does that matter legally? Oh, yes! It matters greatly. It’s a major step toward dealing with disputes between LGBT interests and religious rights in a respectful, pluralistic way, rather than treating religious people and their institutions as ignorant, bigoted, or both.

Will many progressives revert to form and attack traditional marriage supporters the day after the RMA is signed into law? Of course! But they will now be swimming upstream against very strong bi-partisan sentiment that the courts will take seriously.

Severino Claim 2: The RMA can be used by the IRS to deny tax-exempt status to religious organizations that uphold the traditional definition of marriage.

Response: This simply can’t be true. Frankly, it’s a strange argument. The RMA expressly states in section 7(a) that it can’t be used to deny tax-exempt status: “Nothing in this Act . . . shall be construed to deny or alter any benefit, status, or right of an otherwise eligible entity or person, including tax-exempt status . . . .” Combined with the RMA’s Congressional finding that believers in traditional marriage are “reasonable and sincere people” with “decent and honorable religious or philosophical” beliefs (section 2(2)) and there is no legal basis for arguing that the RMA supports or contributes to the denial of tax-exempt status.

Remember that the Supreme Court’s Obergefell decision already mandates government recognition of gay marriage. Seven years later and that hasn’t led to denial of tax-exempt status for any religious organization, whatever nonsense President Obama’s DOJ lawyer might have spouted during oral argument.

Severino notes that the 1964 Civil Rights Act did not automatically revoke tax-exempt status for religious schools that engaged in racial discrimination but that the Supreme Court allowed that later because Congress had established a national or fundamental policy against racism and racial discrimination. That’s true, but it also makes our point.

The RMA is not establishing a national or fundamental policy against discrimination based on same-sex marriage. Not even close. It even creates a new right for religious organizations and schools to abstain from gay-marriage related events on their properties. (See section 6(b).) The RMA simply reaffirms the Supreme Court’s Obergefell holding that government actors must recognize gay marriages performed in other jurisdictions. The RMA does not require that of religious people or their organizations. And it doesn’t establish any kind of national imperative to do so.

The comparison with the 1964 Civil Rights Act fails for another reason. That Act banned religious discrimination too, and yet no one questions the tax-exempt status of religious organizations that limit their membership to people of their faith. Same for women’s clubs and other sex-based nonprofits. Merely protecting against discrimination in one limited area does not mean the IRS is free to deny tax-exempt status to any group that makes distinctions on that basis. The RMA strongly supports tax-exempt status for conservative faith communities.

Severino Claim 3: The RMA can be used by government bureaucrats to deny grants, licenses, accreditation, or contracts to religious organizations that uphold traditional marriage.

Response: False for the same reasons claim 2 is false. Words matter. The text of the RMA matters. Severino can’t just ignore that and claim that the RMA means the very opposite of what it says. In addition to saying it doesn’t affect tax-exempt status, the RMA also says it doesn’t “alter any benefit, status or right” to “educational funding, or a grant, contract, agreement, guarantee, loan, scholarship, license, certification, accreditation, claim, or defense.” (Section 7(a).). Anyone claiming that means government can do just the opposite of what the RMA says is headed for a hard day in court. Could a left-wing litigation gadfly or bureaucrat still attack traditional marriage supporters? Remember: they can do that now. Are they more likely to get away with that after Congress passes a bi-partisan law saying you can’t do that? Of course not.

Severino Claim 4: It is “cold comfort” that the RMA didn’t strip protections under the Religious Freedom Restoration Act because it “sets the stage” for courts to find that government has a compelling national governmental interest in eliminating same-sex marriage “discrimination.”

Response: False. Nothing in the RMA remotely suggests this. Severino reads the extremely limited scope of the RMA as if it were a federal civil rights law commanding everyone and every institution in the nation to affirm same-sex marriage and cease all distinctions based on marriage. It says no such thing. It merely says what Obergefell already says: that government actors must recognize same-sex marriages from other jurisdictions.

The Supreme Court has never suggested its Obergefell holding means government has a compelling interest in eliminating same-sex marriage discrimination outside the government context. On the contrary, in Fulton v. City of Philadelphia the Court unanimously brushed aside that very argument when it was used to attack a Catholic adoption/foster agency that refused to place kids with gay couples. The RMA doesn’t change that at all. Indeed, by affirming that people and institutions that support traditional marriage are good, it makes any such argument far less likely to succeed.

Severino Claim 5: While the risk of being deemed a state actor under the RMA is low, the RMA increases that risk.

Response: False and confused. To his credit, Severino avoids the bogus demagoguery (including from some within his own institution) of those who claim the RMA will apply to all churches and synagogues. The RMA applies to so-called “state actors.” It requires government officials and others who act as the government to recognize same-sex marriages from other jurisdictions. (See Section 4—applies only to those “acting under color of state law”.) It does not apply to individuals or private organizations unless they are government actors, which is extremely rare. And government actors are already bound to recognize same-sex marriage under the Supreme Court’s decision in Obergefell.

Severino attempts to suggest there might be uncertainty about whether a gay couple can already sue under a civil rights law known as Section 1983 to enforce its gay-marriage rights under Obergefell. There’s no uncertainty. Zero. They can sue. If one morning a county clerk’s office denies two people a marriage license because they are of the same sex, that couple could immediately sue under Section 1983 and have a court order commanding the clerk to issue a marriage license by the afternoon. That’s what Obergefell requires. Indeed, the gay couples in Obergefell itself sued under Section 1983 and won. The RMA doesn’t change that one way or another.

In short, if you can’t be sued now under Obergefell, then you still can’t be sued under the RMA.

Severino Claim 6: The protections for religious properties are largely irrelevant because the First Amendment already prevents government from ordering a house of worship to solemnize or celebrate a same-sex marriage within its chapel, church, synagogue, or mosque. The RMA should go further in protecting adoption agencies, marriage counseling, bakers, photographers, florists, bed and breakfasts, etc.

Response: This is making the perfect the enemy of the good. First, as Severino admits, the RMA protects much more than just houses of worship. It also protects the right of religious schools, faith-based agencies, and many other religious organizations of all sizes and shapes from having to host or serve same-sex marriages or celebrations. (See Section 6(b).) For example, a large religious college would not have to host a gay wedding on its campus, even if it hosted opposite-sex weddings.

Many argue the First Amendment does not protect that right, but the RMA does. That’s a very real expansion of religious liberty protections, especially since the RMA doesn’t create a right to sue such organizations in the first place. (See Section 6(b).)

Does the RMA expressly cover every dispute involving LGBT and religious people, such as the famous cake baker situations? No. Why? Because the RMA doesn’t affect those situations one way or another. The RMA applies to government actors. A cake baker is not a government actor. The RMA is irrelevant to private bakers, florists, counselors, etc.

Severino Claim 7: The RMA might allow the federal government to recognize polygamous marriages.

Response: Seriously? The RMA says the opposite: “NO FEDERAL RECOGNITION OF POLYGAMOUS MARRIAGES—Nothing in this Act, or any amendment made by this Act, shall be construed to require or authorize Federal recognition of marriages between more than 2 individuals.” (See Section 7(b).) No court is going to buy the twisted argument that polygamous unions aren’t polygamous after all because a man happens to consider himself a monogamist with each one of his many “wives.” Marrying someone who is already married is a crime in every state. In other contexts, Severino has been a bulwark against wacky legal theories that have no purchase in the courts. We shouldn’t treat those theories as serious risks in this context, either.


The Respect for Marriage Act doesn’t create the religious liberty problems Severino and other critics claim. While it backstops some parts of existing Supreme Court law, it doesn’t equate opposition to same-sex marriage with racism. It doesn’t put tax-exempt status at risk. It doesn’t make it more likely that religious organizations or private individuals will be sued. It doesn’t harm or even apply to bakers, florists, or anyone else in private business. And it doesn’t subject religious persons or groups to a greater risk of lawsuits for not recognizing or for opposing gay marriage in their beliefs, teachings, advocacy, or practices.

If it did any of these things, then important conservative religious organizations that refuse to recognize same-sex marriage wouldn’t be confident in its religious freedom provisions. If it did, preeminent religious liberty scholars and advocates like Professors Laycock and Esbeck wouldn’t support it.

The religious liberty protections in the RMA don’t and can’t fix every religious liberty challenge arising from assertions of LGBT rights. But it protects religious liberty from any risks the RMA itself might create, and then it goes beyond that to protect some religious settings the RMA doesn’t otherwise touch. That’s a win for religious liberty. Most importantly, the RMA establishes that no LGBT rights bill should or can pass Congress without also including robust protections for religious liberty.

1. I won’t speculate as to why some of the faith voices who were once staunchly opposed to recognizing same-sex marriage have flipped on the issue. But flipped they have.

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