Following the support of 12 Republican Senators, on Tuesday evening, the U.S. Senate passed the “Respect for Marriage Act”, formally known as H.R. 8404. The Act will now go back to the House for their approval, because the Senate amended the version of the Act the House originally sent to them.
Since the House is expected to approve this amended Act, and President Biden is expected to sign it into law, many of you – as religious organizations – have questions, including what the bill says and what it means. Although we’re sure you’ll vigorously pore over the full-text of the Act with the same enthusiasm as you did supporting the U.S.A. in the World Cup, we thought you might like to hear from us on this important Act. Here are some answers:
- What does the Act do? It provides that a marriage validly entered into in one State cannot be denied in another State on the basis of sex, race, ethnicity or national origin of the couple. In laymen terms, that primarily means that a homosexual marriage entered into in a State that recognizes such marriages must be recognized as valid in another State.
- Same-sex couples are afforded the same federal rights and claims as heterosexual couples. The Act also provides that any right or claim (legal) arising from such a marriage cannot be denied in any other State on the basis of sex, race, ethnicity, or national origin. Using the homosexual marriage example, a business or individual in one state cannot deny a homosexual couple married in another state (which recognizes such marriage as valid) any services or goods simply because they are homosexual. For instance, a hardware store in State A cannot refuse to sell hardware goods to a homosexual couple married in State B on the basis that State A does not recognize same-sex marriages. This provision also means that same-sex couples are entitled to the same federal benefits as heterosexual married couples.
- The Act specifies that it only applies to a marriage between two individuals, and provides there is no federal recognition of polygamous marriages.
- The Act does not require all States to allow same-sex marriage. Individual states can still choose to pass laws affirming that marriage is only between one man and one woman, or choose to affirm same-sex marriages.
- What about religious objections by individuals or religious organizations? This is the hot-topic question. Let’s take the two separately.
Religious Organizations – Section 6 of the Act clearly provides that any nonprofit religious organization shall not be required to provide services, accommodations, advantages, facilities, goods or privileges for the solemnization or celebration of a marriage. That means that a church or missions agency (or similar religious nonprofit) does not have to provide their facilities for a same-sex couple wanting to get married, or provide any goods or services to solemnize or celebrate a same-sex marriage.
- What is a “nonprofit religious organization”? The Act defines that as churches, nondenominational ministries, mission organizations, faith-based social agencies, religious educational institutions, and any nonprofit entity whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization.
Individuals – There is no specific carve-out for individuals who object on the basis of religion to providing goods or services to a same-sex couple married in a state that recognizes such marriage. However, there is a general “catch-all” provision in Section 6 of the Act that provides that nothing in this Act “shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual… under the Constitution of the United States or Federal law.”
- What does that general-catch all mean? As you’d expect your attorneys to say, it’s unclear. However, our belief is that provision means that any ruling by the U.S. Supreme Court or federal law that affirms an individual’s right to not provide a good or service on the basis of a sincerely held religious belief is still valid and in full force and effect. So, the U.S. Supreme Court’s decision on the Christian Colorado cake-baker seems to be valid (Christian cake-baker refusing to bake a cake to celebrate a same-sex marriage).
- What is still ambiguous is the extent individuals objecting on sincerely held religious grounds are covered. Can a private wedding caterer refuse to offer her services to a same-sex couple? Can a Christian website designer who creates marriage websites refuse to create a wedding website for a same-sex couple? Actually, that last scenario is being argued before the U.S. Supreme Court this coming Monday, Dec. 5th. The case is 303 Creative v. Elenis. For more information on that exciting case, see here.
As always, this is not intended as legal advice, just an update. If you need legal advice or have further questions, don’t hesitate to email us directly, firstname.lastname@example.org and email@example.com. Just don’t email us while the U.S.A. is playing in the World Cup.
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James is a trusted advisor to companies, entrepreneurs, nonprofits, and religious organizations on a range of transactional and general business matters. He advises clients on incorporation issues, mergers, acquisitions, company divestitures, transactional due diligence, and the drafting, review, and negotiation of contracts. James also has significant experience assisting businesses in matters of commercial real estate, employment law, intellectual property, estate planning, regulatory compliance, insurance, risk management, and dispute resolution.
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Keith represents business and corporate clients in conflicts and litigation encompassing complex contract and commercial disputes, intra-company disputes between shareholders and members, employment matters including workers’ compensation, and other areas of risk management. He also represents churches and other religious organizations in matters of governance, internal affairs, risk management, and litigation.