Society-altering Respect for Marriage Act likely to create firestorm akin to Roe v Wade

Abortion didn’t earn the top billing (or the picture) in The New York Times’ Jan. 23, 1973, issue; that honor went to former President Lyndon B. Johnson, who had died the same day Roe v. Wade was decided.

"State Bans Ruled Out Until Last 10 Weeks," the left column headline read. "National Guidelines Set By 7-to-2 Vote; Cardinals Shocked--Reaction Mixed."

It’s difficult to imagine now, but at the time Roe stirred little national outrage outside the Catholic Church, which immediately condemned the decision and began to work against it. The Protestant churches were largely silent. Some Evangelical leaders offered tacit approval, while the Southern Baptist Convention reaffirmed its stance to advocate for "the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental and physical health of the mother."

Although President Richard Nixon had called his 1972 opponent "the triple A candidate," who stood for "Acid, Amnesty and Abortion," his personal response to the ruling a year later was muted.

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The American people themselves, more concerned with Vietnam and other social upheavals of the day, were largely in favor of abortion. In the run-up to Roe, a Gallup poll found that the Republicans of the day were more pro-abortion than their Democrat neighbors, 68% to 59%.

For many politicians, the ruling might have seemed an easy break from the responsibility of having to legislate an otherwise delicate issue that, honestly, most Americans were OK with. Few outside of traditional Catholic circles and the U.S. Conference of Catholic Bishops predicted the moral and political firestorm that would follow.

Fifty years later, Washington politicians are sleepwalking into another firestorm; this time, same-sex marriage – an issue few of them have thought deeply on, and one that polls show Americans won’t line up to oppose.

The Senate voted to advance the Respect for Marriage Act for consideration Nov. 16, with 12 Republicans joining their Democrat colleagues to push the legislation over the 60-vote threshold necessary to avoid a filibuster. 

To some of those Republican senators, it might have seemed an easy choice. "Sure," they reasoned, "the United States Conference of Catholic Bishops were loudly opposed, but they’re out of step." In fact, the day before the vote Pew Research published a poll nearly mirroring 1972 polling on abortion, with six in 10 adults favoring gay marriage and only about four in 10 calling it "somewhat" or "very bad for society."

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The Respect for Marriage Act seems uncontroversial enough on its face in a country where the Supreme Court has already asserted a right to non-traditional marriage in the Constitution. The act has the backing of the Mormon church, which joined the National Association of Evangelicals in supporting the law. Their logic was, in codifying the court’s decision through the legislature (and giving plaintiffs the right to sue over perceived discrimination), the act’s language would also protect their liberties to continue to hold their beliefs on traditional marriage.

The problem is, while the act acknowledges the First Amendment and includes language to protect "the liberty [and] conscience" of individuals and organizations, the protections are both narrow and meaningless.

"Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people," it acknowledges, and "Congress affirms that such people and their diverse beliefs are due proper respect" – but the protections necessary to actually safeguard people from living their beliefs never materialize in the text. Further, an amendment codifying actually explicit protections, written by Sen. Mike Lee, R-Utah, and put forward with 20 of his colleagues, wasn’t even considered prior to the cloture vote.

Were the bill to be passed, every state in the union would be required to recognize the marriage laws of any other state in the union. In practice, this will signal the Californication of American marriage laws; states from Montana to Texas, and from Florida to Washington would be governed by the most radical marriage laws of the most radical state. With a simple and barely debated vote, the Senate would destroy state sovereignty on the country’s central institution.

The private, religious organizations most immediately (and textually) affected will be those that do business with the government. The designation might draw images of road crews and other government contractors, but in reality will extend to those religious nonprofits that assist the government in its social services, potentially including adoption agencies, prisoner rehabilitation clinics, and immigrant shelters.

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And while the law does not explicitly deny grants and licenses to charitable religious organizations, it repeals the Defense of Marriage Act without replacing its protections – leaving religious organizations far more vulnerable to the arbitrary acts of zealous bureaucrats.

The jaws behind the law are twofold. First, state attorneys general may bring civil suits against those they believe are in violation of the laws. Second, any person who is harmed by a violation of [the law] may bring a civil action… against" their neighbor.

The result? Every man a Jack Phillips – the Colorado baker who’s spent a decade embroiled in frivolous-yet-life-altering legal harassment from both private activists and the state itself.

The result? A nearly-impossible-to-traverse lawsuit regime that can reach into your conscience from all angles.

The result? Both religious liberty and fundamental federalism in the hangman’s noose.

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In 1972, the supreme American court pushed forward on a societal-altering path, lulled into complacency by its relative popularity. Over the decades, a small group of outspoken dissidents were able to build a movement that would bestride American politics, even eventually convincing both the court and a large section of American society of the moral truth of their case.

Fifty years later, D.C. appears poised to bypass a vocal dissident minority, and once again embark on a societal-altering path, lulled into complacency by its relative popularity. History is clear on the danger here: If they sow the wind, they may once again reap the whirlwind.

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