The Senate is expected to begin debate on the Respect for Marriage Act (RFMA) after the Thanksgiving holiday, but there’s no sign Democrats are aware that the bill involves a tradeoff between codifying same-sex marriage and perpetuating other forms of anti-LGBTQ discrimination.
An amendment added to the bill this week reaffirms and adds protections to the Religious Freedom Restoration Act (RFRA), which members of Congress and the media routinely refer to merely as protecting religious liberties but in fact has been used in court against LGBTQ and other communities.
As recently as two months ago, a judge sided with a company arguing that RFRA permitted excluding HIV-prevention drugs from its employee health plan to avoid facilitating “homosexual behavior.”
At least one senator told TYT he wasn’t aware of that ruling. And the amendment’s sponsors – Sens. Tammy Baldwin (D-WI) and Kyrsten Sinema (D-AZ), the only open LGBTQ members of the Senate – did not respond to requests for comment about RFRA and the recent ruling.
But a dozen Republicans thought the amendment was worth backing same-sex marriage. Democrats needed at least ten to thwart a filibuster. They got those votes by adding the amendment.
“If that amendment is attached to the bill, I’ll vote for it,” Sen. Mitt Romney (R-UT) said. After the amendment was added, his church, the Mormons, publicly endorsed the bill, which passed a procedural hurdle with a 62-37 vote this week.
The House would still have to approve the amended bill before Pres. Joe Biden can sign it, which he has said he will.
All of which raises the question – are Democrats aware of what those Senate Republicans think they’re getting in the amendment? Or is the amendment toothless and Romney and others are just using it as political cover to justify joining the 21st century?
A number of Christian conservatives, such as Sen. Mike Lee (R-UT), Romney’s fellow Utahn, call the RFRA amendment “lip service.” And in one respect, that’s accurate; the amendment includes rhetorical language. It says that all views of marriage – implicitly including religious opposition – deserve respect.
But its bolstering of RFRA has a more practical impact. Passed in 1993 – also with bipartisan support – RFRA was a response to the firing of two Native Americans for ritual peyote use. But since then, it has become an important legal weapon in the arsenal of the Christian right.
RFRA was sponsored by then-Rep. Chuck Schumer (D-NY). He's now the Senate majority leader, but it’s not clear whether Senate Democrats today know how RFRA has been used since then, even though virtually the entire House Democratic Caucus last year backed a bill to rein in RFRA. (Schumer's office did not respond to a request for comment.)
The Human Rights Campaign says RFRA has been “distort[ed]... into a blank check to discriminate.” And according to the Freedom from Religion Foundation (FFRF), RFRA and state versions of it “create a legal loophole for anyone who wishes to discriminate in the name of religion, allowing individuals and corporations to be free from following the laws everyone else must follow if they claim it would "burden" their religion.”
RFRA, the foundation says, was the basis for the Hobby Lobby ruling, which let corporate owners impose their religious beliefs on their employers by limiting staff healthcare plans to whatever care the owner’s religion endorses.
When then-Gov. Mike Pence (R-IN) signed a state RFRA into law, LGBTQ organizations and celebrity allies went public with powerful statements in opposition. “[C]ivil rights groups and pro-equality businesses are waking up and realizing the dangers of these laws,” the FFRF concluded.
Those dangers arise from the theoretically infinite dimensions that religious freedom can assume.
Just two months ago, U.S. District Court Judge Reed O’Connor ruled that a Texas company called Braidwood Management could rely on RFRA to drop HIV-prevention drugs from its healthcare plan. And the scope of the case extended far beyond just the LGBTQ community.
The reason Braidwood could deny coverage – which O’Connor upheld with his ruling – was that paying for a healthcare plan that covers HIV-prevention drugs “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.”
In other words, RFRA was used to legalize discrimination not just against LGBTQ people, but also against people suffering from drug addiction, anyone having sex outside marriage, and anyone who wanted HIV-prevention medication for any reason.
At least one backer of RFMA, Sen. Bernie Sanders (I-VT), said he was unaware of the RFRA ruling. When asked on Thursday whether he knew about the RFRA ruling, Sanders told TYT, “I did not, honestly, I did not see that. Let me find out more about it. You’re telling me something new.”
And the Texas ruling isn’t the only instance of RFRA being used for exactly the opposite of its intended purpose.
RFRA has also been used to support legal claims that religious nonprofits, and then any nonprofits, and then _for_-profit companies should be able to exclude birth-control from their healthcare plans if the owner can cite a religious reason for doing so.
A Republican administration could use RFRA – as Pres. Donald Trump did – to justify letting a federally funded foster-care agency refuse to place kids with non-Christian families.
One church even argued that RFRA exempted its expansion plans from local zoning laws. The Supreme Court said RFRA didn’t apply that way at the state level, but states have started passing their own RFRA laws, and Congress responded by passing a new law – signed by Pres. Bill Clinton – essentially extending RFRA into zoning issues and expanding RFRA’s reach to include activities that aren’t even compelled by one’s religion.
Kentucky’s RFRA was used as the basis for an August judicial ruling that a professional wedding photographer could advertise that she discriminates against same-sex couples.
Sanders’ office has yet to respond to follow-up questions, but even though he voted for RFRA when he was in the House in 1993, there’s nothing to suggest he’s the only senator unaware of how RFRA has been used by the right. Neither party has raised RFRA’s history in the little debate Congress has had on RFMA so far – on the floor or on camera.
Which might mean each side is gambling -- knowingly or otherwise -- that they’re getting more out of the amended bill than the other side is, and neither wants to tip off the other.
Lee and others on the religious right seem sure they’re losing out. Alliance Defending Freedom President Kristen Waggoner reportedly said, “[T]his bill will be used by officials and activists to punish and ruin those who do not share the government’s view on marriage.”
But others on the right have suggested it’s essentially a wash, zero-sum for both sides: The underlying bill merely enshrines in the law what the Supreme Court decided in Obergefell v. Hodges and the amendment merely enshrines a pre-existing law.
“Advocates of the same-sex marriage bill can arguably claim their bill maintains a status quo under which religious liberty is threatened,” as National Review Washington Correspondent John McCormack wrote.
On the other side, even opponents of RFRA seem to think the amended bill is benign at worst.
HRC is supporting the Senate bill as amended and declined to comment on the amendment to TYT. FFRF Co-President and Co-Founder Annie Laurie Gaylor said in a statement to TYT, “The Respect for Marriage Act is a crucial bill intended to move America forward.”
Gaylor did, however, take issue with RFRA’s role in the new bill, saying, “We would, of course, have preferred that the bill include a provision that RFRA does not apply, as was the case with the Equality Act. Recent Supreme Court decisions allow RFRA to be used to enshrine discrimination via a religious exemption.”
For that reason, Gaylor said, “Congress needs to act and pass the Do No Harm Act, which clarifies how RFRA can be used and how it cannot. An even better solution would be to get rid of RFRA altogether, which has proven to be unnecessary and harmful.”
If both sides are gambling they’re getting the better end of the tradeoff here, it’s worth looking at the track record. As even the right recognizes, they’ve been losing the cultural battle over same-sex marriage.
But the Christian right may succeed in undermining the legal force of those marriages if it can continue expanding the concept of religious liberty to legalize discrimination against the LGBTQ community. And the Christian right has a substantive track record of getting Democrats to endorse religious endeavors that appear anodyne but are weaponized politically.
As TYT has reported, for instance, Democrats time and again have pleaded ignorance as to how their participation in the National Prayer Breakfast has helped the secretive, right-wing group that runs it promote its leaders’ agendas – anti-LGBTQ and anti-reproductive rights – around the world.
With apparently unwitting Democratic assistance, the Fellowship Foundation, also known as The Family, has built right-wing networks in Europe, protected Guatemala’s evangelical president by kneecapping a UN anti-corruption task force, and radicalized a previously apolitical pillow salesman named Mike Lindell.
And at the moment, while the right is raising alarms about RFMA’s ostensible erosion of religious liberty, no one on the left is publicly banging the drum about the dangers of reaffirming RFRA. In fact, the only indication that Democrats might regret passing RFRA now is that that’s exactly what happened the first time.
With additional reporting by Washington Correspondent Candice Cole and National Correspondent Matthew Sheffield.
Jonathan Larsen is TYT’s managing editor. You can find him on Twitter @JTLarsen.