[The bill headed to Biden’s desk includes a religious exemption
that sets a troublesome precedent, not only for LGBTQ rights but
possibly for all legislation.]
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THE RESPECT FOR MARRIAGE ACT SETS A DANGEROUS PRECEDENT FOR CIVIL
RIGHTS  
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Katherine Franke
December 9, 2022
The Nation
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_ The bill headed to Biden’s desk includes a religious exemption
that sets a troublesome precedent, not only for LGBTQ rights but
possibly for all legislation. _

Speaker of the House Nancy Pelosi (D-Calif.) signs the bill as
bipartisan Senate and House members participate in a bill enrollment
ceremony for HR 8404, the “Respect for Marriage Act” on Capitol
Hill in Washington, D.C., on December 8, 2022., Jim Watson / AFP via
Getty Images

 

State legislatures across the country put a target on the backs of
LGBTQ people this year. Lawmakers introduced nearly 200 bills
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would criminalize the health care LGBTQ people need and deserve, erase
our history and culture, and render our very existence unspeakable.
So, it came as somewhat of a surprise that the US Senate, and now the
US House, passed a bill to secure marriage rights for same-sex
couples. The Respect for Marriage Act requires the federal government
to recognize the marriages of same-sex couples, and mandates that all
states honor valid marriages from other states—specifically barring
states from refusing to validate out-of-state marriages if the reason
for doing so is the couple’s sex, race, ethnicity, or national
origin. The bill now heads to President Biden for his signature.

The bill has an unusual provenance. When the Supreme Court
overruled _Roe v. Wade_ last June in _Dobbs v. Whole Women’s
Health_, Justice Clarence Thomas wrote a concurrence that made
explicit what was implied in Justice Alito’s majority opinion: By
knocking the constitutional legs out from under the right to abortion,
the court left nothing for the rights to contraception and same-sex
marriage to stand on. The next day, the switchboard in Congress lit up
with calls from constituents in same-sex marriages, demanding that
their elected officials do something to protect their marriages and
families before the Supreme Court could reverse _Obergefell v.
Hodges_, the 2015 same-sex marriage decision. Congressional staffers
got to work and drafted the Respect for Marriage Act. Thus, the
Respect for Marriage Act was not something that originated with the
LGBTQ rights groups, like the Equality Act now pending in the Senate
that would add protections against “sexual orientation” and
“gender identity” discrimination to a wide range of federal laws
that already prohibit race, sex, and other forms of discrimination.

The Senate passed the bill with support from 12 Republicans by
including in the bill a robust exemption for religious organizations.
This strategy, referred to by insiders as “the Utah compromise,”
reflects a strategy taken in Utah to pass gay rights legislation by
including broad carve-outs for religious objectors. Better half a loaf
than no loaf at all, so the thinking goes. But alarm bells should set
off when a strategy to protect civil rights in an outlier state—a
state some have described as a theocracy—becomes the new normal for
the whole country.

What’s worrisome about how the Respect for Marriage Act accommodates
religion is not that the exemption will undermine the marriage rights
of same-sex couples—in fact, it will apply in very few cases,
because the bill only requires states and the federal government to
recognize the marriages of same-sex, interracial, or interethnic
couples, and government entities can’t assert religious liberty
rights. Rather, what is troublesome about this broad religious
exemption is the precedent it sets, not only for protections for LGBTQ
people but possibly for all legislation.

MORE FROM KATHERINE FRANKE
[[link removed]]:   DIARY OF A
QUEER KID
[[link removed]]  April
29, 2022  RELIGIOUS OBJECTORS TO LGBTQ EQUALITY WILL RETURN TO THE
SUPREME COURT
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March 9, 2022  COLUMBIA UNIVERSITY HAS LOST ITS WAY
[[link removed]]  January
18, 2022  Author page
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Evangelical, right-wing legal advocates have been pushing hard for
religious exemptions to everything
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including Covid regulations, laws securing LGBTQ and sex equality,
workers’ rights to unionize and a minimum wage, laws criminalizing
domestic violence or child abuse, and the law of divorce. Including an
explicit religious exemption in a civil rights law—one that is
broader than what the law might otherwise already allow—risks
inviting the camel’s nose under the tent. Evangelical conservatives
will surely use the Respect for Marriage Act as a precedent for
including explicit and broad religious exemptions in almost any
conceivable law. A good example is the lobbying effort of the
Christian right around the Pregnant Workers Fairness Act, a bill now
pending in the Senate that would require employers to reasonably
accommodate pregnant employees, demanding
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a religious exemption be included in the law. “The bill we are
discussing today deals an unnecessary blow to religious organizations,
potentially forcing them to make hiring decisions that conflict with
their faith,” recently argued Republican Representative Virginia
Foxx. Well, the same could be said for all laws prohibiting race or
sex discrimination, yet we have had a national consensus that an
employer may not raise faith-based objections to compliance with
workplace equality laws. How solid that consensus remains is an open,
and worrisome, question.

Beyond the religious exemption in the Respect for Marriage Act, there
is an even stronger explanation for why 12 Republicans in the Senate
and 39 Republicans in the House (down from 47
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July) voted for the bill. The Republican Party, or at least the
less-extreme sector of the party, is stinging from the midterm
elections. in which the hateful right wing loudly broadcast homo- and
transphobic messages to its base. Even though this ugly appeal got the
base to show up on Election Day, it wasn’t enough, as the majority
of those MAGA haters lost. Now, Republicans want to distance
themselves and their version of the GOP from the MAGA right. What
better way to do that than to launder the party through support for
same-sex marriage? There’s a term for this: pinkwashing. I
understand this as the peril of “dating the state
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the state, or the political parties that make up the state, take up
your cause as its own, “victory” becomes something that is
inescapably morally compromised.

How is this true in the case of the Respect for Marriage Act?
Certainly, exempting religious objectors normalizes the principle that
religious liberty is more important than equality, thus solidifying
the tiering of constitutional rights that I previously wrote about
for _The Nation_
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But of even greater concern is the overall conservative framing of the
bill. It starts: “No union is more profound than marriage, for it
embodies the highest ideals of love, fidelity, devotion, sacrifice,
and family.” Really? For a community that has a long history of
queering the idea of family, kinship, love, and care? This language
harkens back to Justice Anthony Kennedy’s bromide in
the _Obergefell_ case: “Marriage responds to the universal fear
that a lonely person might call out only to find no one there. It
offers the hope of companionship and understanding and assurance that
while both still live there will be someone to care for the other.”
Senator Chuck Schumer couldn’t help himself either, tearfully
stepping up to a microphone
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after the Senate voted on the bill to declare that prophylactically
shoring up the marriages of same-sex couples was “personal to me….
my daughter and her wife will be welcoming their first child…in a
few months…. That child will now grow up in a world that will honor
their mothers’ marriage and give it the dignity it deserves.”
Fifty years after the Stonewall riot, marriage has become the
normalizing container for LGBTQ equality, freedom, dignity, and
security.

Winning the right for same-sex couples to wed has come at a very high
price: signing up for a vision of the family, commitment, love, and
care that domesticates our needs and desires into the traditional
nuclear family, a version of family and responsibility that is
anathema to the radical queer politics that sustained us before,
throughout, and after the AIDS epidemic. Not coincidentally, it
furthers a neoliberal vision of a state that bears no responsibility
for supporting the welfare of its citizens.

While it is refreshing to see a bipartisan supermajority of senators
act in a way that isn’t explicitly and toxically homo- or
transphobic, it is worth noting that the Respect for Marriage Act is
the least queer gay rights victory in history. In this respect, it
marks the zenith in the evolution of the LGBTQ rights movement from a
radical fight for sexual liberation into an unadventurous campaign to
protect the right to marry, leaving out in the cold the rest of us who
are unmarried, single parents, in queer families, or otherwise living
outside the nuclear family as a political choice or legal necessity.

_Katherine Franke is the James L. Dohr Professor of Law at Columbia
University and the founder and faculty director of the Law, Rights,
and Religion Project._

_Copyright c 2022 THE NATION. Reprinted with permission. May not be
reprinted without permission
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Distributed by PARS International Corp
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