By Royal Alexander
On November 29, 2022, the so-called “Respect for Marriage Act” was approved in the U.S. Senate. It will now head to the U.S. House for approval and then to President Biden.
The law is unnecessary, redundant, and constitutionally suspect.
One of the central tenets of our constitutional scheme is that, with the exception of the limited, enumerated rights and powers granted by our U.S Constitution to the federal government, all power and policymaking authority is reserved to the states and, therefore, to the people. This constitutional structure stems from the Framers unquestioned belief that the states and their citizens are far better suited to make life, health, safety, and other social policy decisions—such as the definition of marriage—than is the federal government which is so far removed both geographically and culturally from the American people.
“Marriage” is not mentioned in the Constitution. Not a word. So, the states should be free to define the marriage relationship as they see fit. This means that states like California, Oregon and Massachusetts have already recognized gay marriage while states like Texas, Mississippi, and Louisiana do not. That’s the exact result the Framers of our Constitution intended with our system of co-federalism—our 50 states and the federal government—working in unison but along different tracks of jurisdiction.
However, that’s not what has happened.
In the 2015 Obergefell decision the Supreme Court, yet again, “found” a “fundamental right,” this time to gay marriage. This is very similar to how the U.S. Supreme Court in 1973, in Roe v. Wade “discovered” another so-called right that is also nowhere mentioned in the Constitution—the “right” to abortion.
It is a dangerous use of judicial power for the Supreme Court to “create” fundamental rights that are found nowhere in the Constitution. Nevertheless, over the years the U.S. Supreme Court has held both that there is a fundamental right to marry generally and now, in Obergefell, a fundamental right to gay marriage.
Whether or not this is the correct policy choice is not the issue. The issue is that this “right” is not found in the U.S. Constitution.
But once again, as in Roe, by creating a right not found in the Constitution, the Supreme Court has stripped from all 50 states the authority to make the serious policy decision about what constitutes a marriage within a given state. The result is that, exactly as in Roe, unelected, life-tenured federal judges on the Supreme Court have substituted their social and policy preferences for those of over 330 million Americans.
The second issue is that the new federal law allowing gay marriage is unnecessary because there are no new rights conferred under the new federal law that are not already provided for by the Obergefell decision itself—i.e., married same-sex couples already cannot lose any of their benefits or legal status.
But that’s not really the goal of the Biden Administration.
Their real purpose for this new law is to provide a legal “hammer”—a private right of action—with which groups who support gay marriage may sue organizations and entities that support traditional, biblical marriage.
Specifically, the lawsuits under this new federal law will be predictably used to target people of faith and to strip them of their IRS tax-exempt status. The same fate awaits houses of worship and adoption agencies that believe that the most ideal placement for a child is with a married mother and father, as well as for those who contract or receive grants from the government and who want to choose to live according to their beliefs with respect to marriage.
Many of these religious liberty concerns could have been addressed if an amendment, offered by U.S. Senator Mike Lee (R-Utah), had been adopted. Senator Lee’s amendment would have prohibited the federal government from punishing individuals, organizations, nonprofits, and other entities based on their sincerely held religious beliefs about marriage by prohibiting the denial or revocation of tax-exempt status, licenses, contracts, benefits, etc.
But that amendment wasn’t adopted.
So, this is where we are:
Groups that adhere to a traditional definition of marriage will, by the lawsuits enabled in this new law, have their ability to participate in the public square undermined because, without their critically needed tax-exempt status, many of these organizations will not survive.
This outcome effectively favors one group at the expense of another and doing so cannot be reconciled within our constitutional scheme.