This is a lightly edited transcript of remarks Sen. Mike Lee delivered before his amendment to the so-called Respect for Marriage Act was voted on. That amendment failed in a 48-49 vote Tuesday. Shortly after, the Senate passed the Respect for Marriage Act.
Madame President, today, as popular winds blow against the man and woman of faith, we should look to the Constitution and remember that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. We do a disservice to all Americans if we elevate the rights of one group at the expense of another.
On the one hand, there’s no existing threat to same-sex marriage. It is and will remain legal nationwide regardless of the outcome of this legislation before us, the Respect for Marriage Act.
On the other hand, we have current, real, sustained ongoing assaults on religious freedom. How we proceed today will do nothing to the status quo of same-sex marriage in this country. It’s legal and will remain legal regardless of the outcome of this legislation.
It will, however, if enacted, have profound consequences for people of faith.
In the wake of the Dobbs decision, proponents of this legislation have conjured up a series of hypothetical scenarios resulting in an imagined threat to the ability of same-sex couples to marry and enjoy the privileges of marriage. The rhetorical slippery slope goes something like this. First, they claim that some unknown, unnamed state is on the verge of passing an unknown, yet to be proposed or imagined law prohibiting same-sex marriage. Next, they imagine that federal district courts will uphold this hypothetical state law despite the crystal-clear direction within the Dobbs and Obergefell opinions from the Supreme Court. Should that adventure of unlikely hypotheticals transpire, they envision a case making its way all the way up to the Supreme Court of the United States.
All of this, despite the lack of political will anywhere in the United States to prohibit same-sex marriage. Should that happen, proponents of this bill contend that there is a non-zero chance that one justice could decide to analyze the right to marry, not through the prism of substantive due process, as it has been since Obergefell was decided in 2015, but rather through the lens of the 14th Amendment’s privileges or immunities clause.
Proponents of the bill cite a single line within Justice [Clarence] Thomas’ concurring opinion and suggests that one justice could effectively destroy legal recognition of same-sex marriage, not just prospectively, but undoing currently legal same-sex marriage.
Now, this, Madame President, is a complete fantasy.
I’m not aware of a single state in the United States threatening to pass any law infringing the ability of any same-sex couples to marry or enjoy privileges associated with marriage, nor am I aware of a single state threatening to invalidate, within their borders, marriages entered into in other states, nor is it at all clear that Justice Thomas himself was suggesting that Obergefell be overturned.
He was suggesting that it be analyzed, like all substantive due process jurisprudence, to figure out whether there might be another provision of the Constitution under which it might be more appropriate. They were attributing to him statements he didn’t make, they were attributing to him analysis he didn’t even undertake in that one statement regarding the doctrine of stare decisis, and then they were attributing to state’s intentions they do not have and have not expressed.
My colleagues have yet to offer even a single example of a same-sex marriage threatened by any current or pending state legislation, not one, not a single one, and they intentionally misinterpret Justice Thomas’ concurring opinion in Dobbs and claim that the sky is falling, but it’s just not happening.
Unfortunately, we are aware of case after case where individuals, charities, small businesses, religious schools, and religious institutions are being hauled into courts to defend themselves for living out their faith. These people are not committing hate crimes against their neighbors. No, they’re not abusing peers for their personal choices either. No, they’re being hauled into courts across this country for serving the poor, the needy, and the refugee in compliance with their sincerely-held religious beliefs.
In Texas, the United States Conference of Catholic Bishops is currently being sued for operating in accordance with Catholic beliefs regarding marriage while providing foster homes for unaccompanied minor children. Now, proponents of this bill claim that these charities will be free to continue to operate. However, in that case, the question is whether, because the Conference of Catholic Bishops receives federal funding to help with its work, it might be operating under color of law.
If accepting grants and licenses from the government makes you an actor under color of law, then many of our religious charities and schools will be threatened by this legislation, which relies on that un-narrowed, undefined phrase. Either the U.S. Conference of Catholic Bishops can cease operating according to its religious tenets or abandon its God-given mission to care for the refugee.
In at least three other cases, religious child care service agencies deemed to be acting under color of law are being shut out of foster care and adoption. These religious ministries can either abandon and cease to act according to their convictions, their religious convictions about marriage, or they can abandon the orphan. This nation and our orphans rely on these charities.
We cannot and must not force that decision on them. That isn’t who we are. From the very moment of our founding, we’ve been a nation that has welcomed people of all beliefs and of no belief at all.
In recent years, the Obama administration, through the U.S. Department of Education, compiled a so-called shame list outlining more than 200 faith-based colleges and universities seeking religious exemptions from Title IX guidance on transgender and sex discrimination. It is highly likely that these organizations could also risk losing their 501(c)(3) status.
Madame President, considering that we’re in the process of hiring 87,000 new agents within the Internal Revenue Service, it’s not beyond the realm of possibility that some of these new IRS agents will be deployed specifically to review the tax-exempt status of some of these traditionally exempt religious schools. These colleges and universities can either cease operating according to their religious convictions or run the risk of losing their ability to provide quality education at reduced prices. We may well find that they will not be able to do both and that would be a tragedy.
Dr. Andrew Fox created a chaplaincy program at the Austin Fire Department, where he served as the lead chaplain in a volunteer capacity for eight years, earning the trust and respect of local firefighters. In a personal blog, nothing connected to his work, just a personal blog, Dr. Fox shared his religious views, religious views specifically regarding marriage. City officials demanded he recant his statements and apologize for the harm that his blog post allegedly caused. He explained that he intended only to foster discussion and not cause offense and he apologized if anyone was offended. His apology apparently wasn’t enough for city officials, who demanded total compliance with their preferred views on marriage, views that didn’t embrace his own religious beliefs. They forced Dr. Fox to hand in his uniform. He could keep his job or his beliefs, but not both.
We should not be surprised by the current state of affairs. After all, it was abundantly clear during the Obergefell oral argument before the Supreme Court that this threat to religious nonprofits would be forthcoming. The prescient exchange between Justice [Samuel] Alito and then-Solicitor General Donald Verrilli forecasted the present hostility and the corresponding threats to religious organizations.
Justice Alito asked whether, should states be required to recognize same-sex marriages, religious universities could lose their tax-exempt status. His response, the response from Solicitor General Verrilli was chilling. He said, quote, “It’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It’s going to be an issue.” …
It is an issue today. And under this legislation, it will only get worse tomorrow, unless we take affirmative steps to prevent that from happening.
And we have the opportunity to do so here and we shouldn’t miss it. Unlike the hypothetical, but entirely nonexistent marriages being threatened or discriminated against, these religious organizations are currently, right now, in court fighting for their God-given and constitutionally-protected rights to live and operate according to their beliefs and conscience.
They’re being targeted and harassed by those who would force them to abandon their convictions and embrace the convictions preferred by the government.
Sadly, the hostages at risk in this standoff are those who have benefited from the charitable work of these institutions: the poor, the hungry, the refugee, the student, and the orphan. Instead of resolving the concern posed by Justice Alito, this legislation will put the weighty thumb of government on the scale against religious organizations and individuals. Now, they say, “Don’t worry. You can still believe as you wish, but if, in living out your faith, you offend the views sanctioned by the government, you will suffer the consequences.”
What do we get for this heavy sacrifice of religious freedom? Are we alleviating the suffering of same-sex families about to be destroyed by government interference? No.
As I’ve said, we haven’t heard of even one potential threat to same-sex marriage, not one. The only outcome we can expect from this legislation is for religious individuals, businesses, and institutions to spend more time and more money defending their God-given rights in court.
In our pluralistic society, we must be willing to compromise and adapt so that we might live peaceably with one another. In that spirit of compromise, let us ensure that we’re protecting families, both traditional and same-sex families, and that we are protecting the right to believe as we wish and live out those beliefs without government interference. I believe we can do both. In fact, I know we can do both.
Now, the Collins-Baldwin Amendment takes a step in the right direction and I’m grateful for that. Rabbis, imams, and pastors should never be forced to perform a marriage contrary to their beliefs, but religious liberty is so much more than marriage and it entails so much more than what might go on within the four walls of a mosque, a synagogue, or a church. It certainly entails and must include the ability of people to practice their faith not only at church, but at home and in the public square.
In the hope that we can come to a place where we respect each other, I have offered an amendment to this legislation that would explicitly minimize the threats to these religious organizations and individuals. I’m at the table. I’m willing to compromise and, in the spirit of compromise, I’ve publicly stated, and I reiterate here again today, that I will support the legislation if my amendment is adopted.
My amendment simply prohibits the federal government from discriminating against schools, businesses, and organizations based on their religious beliefs about same-sex marriage. That’s all it does. It’s very simple and I’m grateful that we’re going to have the chance to vote on it later today.
I’m also grateful to the work of my friend and colleague, Sen. Dan Sullivan from Alaska, who, working together with several of my other Republican colleagues, helped secure and schedule this vote. I’m grateful to him for that effort.
My amendment prevents the Internal Revenue Service, among other things, from revoking the tax-exempt status of these charities and organizations simply because they act according to their beliefs about the divine purpose of marriage.
It prevents the Department of Education from targeting schools with honor codes based on the fact that they’ve got provisions in their honor codes based on religious beliefs. It protects individuals from being denied business licenses or grants or other statuses based on their views about marriage. It protects Americans who wish to act according to their religious beliefs from being forced to abandon their God-given mandates to love, serve, and care for the poor, the orphan, and the refugee. If we allow the government to threaten their ability to do so, then the religious liberty of every American is in peril.
That’s why I would ask those who have doubts about this to reconsider doubts about my amendment. If they object to my amendment and are inclined to vote against it based on the fact that they regard it as unnecessary, then why not pass it?
This is a legitimate concern that some may argue this, as I’ve been told by many of the bill’s sponsors, that my amendment is unnecessary because, according to them, the Collins substitute amendment contains protections that already accommodate this concern.
Now, the Collins substitute amendment does, in fact, contain some protections. I’m grateful that those were included and that is a meaningful step in the right direction. I must point out, however, that it doesn’t do what my amendment does and, therefore, doesn’t do what many of its proponents are claiming. Nowhere in that legislation is a statement prohibiting the federal government from taking adverse action against an individual or an entity based on a sincere religious belief about same-sex marriage, whether that religious belief is one that embraces or does not embrace same-sex marriage.
It does not do that. It instead says that nothing in this act shall be construed to alter or deny any status or benefit of any group. Those are two very different things. That language does not do what my amendment does. You see, the threat is not and never was based on what the act itself would do. The act doesn’t purport to itself deny or alter any status or benefit or right. And so by taking that away, they’re paying lip service to the need for my amendment, but they’re not actually addressing it.
The threat has been present, at least since Obergefell itself was decided, for the reasons that prompted Justice Alito to ask then Solicitor General Verrilli a question about it and the same reasons that prompted Solicitor General Verrilli to acknowledge that it was going to be an issue. Those same reasons exist today. They don’t go away because of this legislation. If anything, they’re enhanced. The risk is enhanced as a result of this legislation.
That’s why this is the perfect opportunity. It is the right opportunity. It may well be the only opportunity to make sure that, as we’re undertaking a legislative effort to codify rights for one group of Americans, we don’t do so in a particularly un-American way—that is enhance the rights of some at the expense of others. That’s not how we roll. That’s not how we do things in this country. We can protect both of these interests at the same time, just as we can walk and chew gum.
And so for those who would say the Lee amendment isn’t necessary because the Collins amendment already takes care of it, that’s just not true. And even if it were true, why not accept the Lee amendment, anyway? Which begs the question, why wouldn’t anyone want to deny the federal government the authority to retaliate against individuals, nonprofits, and other entities based on their sincerely held religious beliefs? Think about that for a minute. Why wouldn’t they want to deny that very power from a government that may wield it in a way that is categorically abusive?
For my Republican friends, who are sympathetic to the need for my amendment and are going to support it, I’d ask that, if they support it and if the amendment fails, that you not support the underlying bill because, if you support my amendment, hopefully, presumably, that means because you agree that it does something, that it does something necessary. It certainly doesn’t counteract, contradict, or undermine the stated purpose of this bill in any way. So if you believe that it’s necessary and you’re going to vote for it, if it fails, you should oppose passage of this bill unless or until the Lee amendment is adopted. We could get this done.
I understand that it’s not going to happen as long as there are at least 10 Republicans willing to join with every Democrat in order to support this legislation, but if even three of the 12 Republicans considering support for this legislation in the end, if even three of them supporting my amendment would decide not to support the bill unless or until the Lee amendment was added, I’m confident, indeed, I am certain that it could and would ultimately be adopted.
As I said, Madame President, we must be willing to compromise to protect the interests of all. I urge my colleagues to support my amendment, which would assure that all Americans would have certain rights and that their religious beliefs and their moral convictions will be explicitly protected and provide some comfort that Congress is not purposely passing laws that restrict the free exercise of religion. Thank you, Madame President.
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