The Respect for Marriage Act & Religious Liberty: At Odds or Unaffected?

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Chayila Kleist:  Hello, and welcome to The Federalist Society’s webinar call. Today, February 15, 2023, we discuss “The Respect for Marriage Act & Religious Liberty: Are They At Odds or Unaffected?”

 

My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s program, as The Federalist Society takes no position on particular legal or public policy issues. In the interest of time, we’ll keep our introductions brief. But if you’d like to know more about any of our panelists, you’re welcome to access their full impressive bios at fedsoc.org.

 

      Today, we are fortunate to have with us as our moderator, Matt Clark, who is the President of the Alabama Center for Law and Liberty, a legal arm of the Alabama Policy Institute, where he engages in both direct litigation and amicus advocacy. Prior to coming to ACLL, he served as an attorney for the Foundation for Moral Law in Montgomery for five years from 2016 to 2021. And prior to working at Moral Law, Mr. Clark served as a staff attorney in the Alabama Supreme Court. I’ll leave it to him to introduce the rest of our panel.

 

      One last note. Throughout the panel, if you have any questions, please submit them by the question-and-answer feature so that our speakers will have access to them when we get to that portion of today’s webinar. With that, thank you all for being with us today. Mr. Clark, the floor is yours.

 

Matt Clark:  Thank you very much, Chayila. Good afternoon, everybody. Glad to have you with us. And I’m excited about our panel of experts that we have here today. As you probably know, at the end of the last year, Congress passed the Respect for Marriage Act concerning same-sex marriage. And the question that many of us have right now is, is this going to have negative implications for religious liberty or not?

 

      So, to discuss both sides of that issue today, we have with us Professor Carl Esbeck, who is a Professor at the University of Missouri. And we also have with us Mr. Greg Baylor, who is Senior Counsel at Alliance Defending Freedom.

 

      So, gentlemen, thank you for being with us. I’m honored to have you here. And without further ado, let’s go ahead and dive in. So we’re going to open up with Professor Esbeck with his opening remarks. And after that, we’ll give Greg a chance to talk, and then we’ll take it from there. So, Professor Esbeck, please, take it away.

 

Carl H. Esbeck:  Thank you, Matt, and good afternoon to the East Coast, and good morning to our three time zones. I’m going to begin with saying several words, actually, about how this legislation came about because it’s pretty unusual. We’ve got LGBTQ and religious liberty in the same bill. That’s certainly unusual, and maybe that’s a modest way to put it. I’m going to use the acronym “RMA,” so I hope that doesn’t throw people off—Respect for Marriage Act.

 

      So this came about as a result of the Dobbs opinion, which, of course, overruled Roe v. Wade in early June of last year. And there was quite an uproar. In fact, the uproar even started because of the leak of the Dobbs opinion, not its actual handing down. And part of the uproar was due to a concurring opinion by Justice Thomas.

 

Justice Thomas was in the five-justice majority opinion, but he wrote separately alone. And, among other things, he suggested that the Court ought to completely review—and, eventually, overrule—all of its substantive due process cases or what some call “fundamental rights jurisprudence” under the Due Process Clause. And he specifically called out a few examples, like Griswold v. Connecticut, but he also called out Obergefell, decided in 2015, which, of course, declared that there is a constitutional right to same-sex marriage.

 

Well, that caused concern on the LBGTQ side for marriages: marriages that had already been entered into based upon the Obergefell opinion. And we can debate whether the prospect of overruling Obergefell is really very likely. And, personally, I said at the time, and I’ll say now, I think it unlikely. But I would say that those who were concerned about it were genuine in their concern.

 

So it led to the introduction of the RMA, first in the House, and it quickly passed the House of Representatives in June. So it really just took five or six weeks after the Dobbs opinion came down before the House had a bill that would protect, among other things, marriage equality.

 

Not only was it quick, but I think what was interesting was that 40 or 50 Republicans voted for the bill. That caught people’s attention. So, of course, now it goes over to the Senate side where, normally, legislation of this would be dead on arrival, and several people thought this one was dead on arrival as well.

 

But a few senators, on a pretty low-key bipartisan basis, both parties—in particular, I’ll mention Susan Collins, a Republican from Maine, and Rob Portman, a Republican from Ohio—expressed a good deal of interest in trying to modify the bill. The bill was entirely one-sided as it came over from the House. It was entirely about marriage equality—but to leaven into the bill protections for religious liberty and see if we couldn’t get 60 votes in the Senate and, hence, break the filibuster and pass a bill—but a bill that was more balanced with religious liberty in it.

 

And so there were pretty quiet negotiations as to what sort of right-of-center religious liberty folks, and those in sympathy with them, what they would need in order to support the bill and tell moderate Republicans in the Senate that they should vote for the bill.

I should say, by way of disclosure, I was part of a law professor’s letter, which came out in the -- kind of late in this process because we have available to us the prospective religious liberty provisions that said that the religious liberty provisions were important and worthwhile—the Senate consider on their merits.

 

So on, let’s see, November 17 then, this came up on a test vote to see if they had enough Republicans to break the filibuster, and it was 62 to 36. So there were 12 Republicans—along with 50 Democrats—voting for this test. So that indicated that the filibuster could be broken.

 

And while there were attempts by people farther right of center to eat into that Republican 12 votes, the Republicans stayed with their original votes. And eventually, the bill did pass the Senate with religious liberty provisions that we’re going to get to pretty quickly. Then it went over to the House. The House, of course, passed it, and it went to the Whitehouse. So far as I know, the Whitehouse had nothing to do with the passage in the Senate whatsoever. And, of course, it was the Senate which really determined whether we would have a bill.

 

All right. So I say all that because the thing that the LBGT community wanted most was that their marriages be protected if Obergefell was reversed by the Supreme Court. So keep that in mind. Then on the religious liberty side, while there were three or four things of concern, the primary or point thing of concern had to do with the Bob Jones University case from the early 1980s. And that was whether their tax-exempt status—or 501(c)(3) tax-exempt status—was in jeopardy because they were a traditional religious theology, and therefore, oppose same-sex marriage.

 

What really set this off was the Obama Solicitor General, Donald Verrilli. In the oral argument of Obergefell, he was asked by Justice Alito, “If we rule your way and find it a constitutional right to same sex-marriage, isn’t that, under Bob Jones, going to put at jeopardy the -- for public policy reasons the religious organizations that hold traditional beliefs, the historic beliefs, as to marriage -- going to put their tax-exempt status at jeopardy?” And he said, “Well, it’s certainly going to be an issue. It’s certainly going to be an issue.”

 

So that caused a bit of an uproar, or you might say a panic, in some conservative circles. And again, you can debate whether they should have panicked or not or whether there’s any likely prospect of religious groups being tripped up by a Bob Jones University ruling. But again, you can certainly say that their concern was genuine. And so a point issue—or point number one— was their tax-exempt status. All right. So what we have here is a bill that’s reflective of cultural pluralism.

 

So now, I’m going to the bill. And for those of you who downloaded the bill or otherwise have it, you might want to put the bill in front of you. It’s very short. And there are sort of three positives for marriage equality, and I’ll unpack each of those very briefly. And there are three positives for religious liberty. Now note that I’m calling these positives, not advances, because, sometimes, just to maintain the status quo is a positive. I mean, if you’re on the marriage equality side, to maintain the status quo—even in the face of Obergefell being reversed—is a positive. And maintaining the status quo, from their side, means getting congressional legislation, which will protect same-sex marriage in the event that Obergefell is later reversed.

 

So Section 3 of the RMA is the first positive. And all it does -- I mean, it’s a simple provision. That’s all I mean by “all.” It repeals Section 2 of DOMA, the Defense of Marriage Act, which was passed back in the Bill Clinton presidency. And what Section 2 of DOMA said was that a state may refuse full faith and credit to the marriage that was consummated in a sister state if they oppose same-sex marriages. So that section is now repealed as a result of RMA.

 

Now, you could brush this aside as well as just cleaning up the U.S. Code because that section was no longer enforceable because of Obergefell. But remember, the premise here is, what if Obergefell is reversed? So if Obergefell is reversed, then Section 2 would’ve come back into positive law, but it’s now repealed.

 

Section 3 of DOMA was struck down in The United States v. Windsor. That was a 2013 case. What Section 3 held or provided was for a federal definition of marriage, which was -- the marriage that the federal government would honor was a marriage only between one man and one woman. That was struck down in Windsor.

 

All right. So now, the second positive, if you will, for marriage equality is in Section 4 of the RMA. And it says that a state must give full faith and credit to marriages that are valid in a sister state, or at least it can’t turn away full faith and credit to those marriages on the basis of race, national origin, ethnicity, or sex. Of course, sex gets to the same sex-marriage element.

 

And in order to back that up—and I should say the congressional authority for passing Section 4 of the RMA would be the full faith and credit clause itself—to back up Section 4, there’s 2 provisions. There’s a private cause of action against state or local officials acting under color of state law, or the U.S. Attorney General is given a cause of action to enforce Section 4 of the RMA.

 

Now, it already exists once Obergefell came down—a private cause of action under 42 U.S.C. 1983 because that provides a civil rights remedy for a violation of a constitutional right—here, the constitutional right declared in Obergefell. And so we already know what a private cause of action looks like for, in this case, equity and for -- even for damages, if you can overcome qualified immunity. But it has to be against a state actor or under color of state law. The U.S. Attorney General’s cause of action course is new and new to the RMA.

 

All right. And the third positive for marriage equality is under Section 5. So the first one is Section 3. The second one is Section 4. The third one under Section 5 of the RMA, and what it says is, when the federal government extends a benefit or an accommodation or a license. And marriage—or the status of a marriage—is part of that benefit calculation. In other words, you get the benefit if you’re married, or you get the benefit if you’re not married: you’re single, and so on.

 

So the federal government, in order to apply its legislation, like social security, sometimes, it often matters quite a lot whether the person is married or not. Their benefits are higher if they’re married and so on. The same thing with income tax law or estate law—federal estate law. So if the federal government needs to make a determination as to whether the person claiming a benefit that’s in front of them -- what their marital status is, Section 5 of the RMA instructs that you look to the state law where the marriage took place.

 

All right. Now, to the positives for religious liberty, and these are, I think, a little more difficult to explain. So first one, I’m going to lump together Section 6(a) of the RMA and Section 7(a) of the RMA. They’re both rules of construction. So right there, you’re not dealing with a new substantive right. Rather, you’re dealing with instructions to a judge or to the attorney interpreting this law for your client how to construe the RMA.

 

So Section 6(a) says that, in construing the RMA, you’re not to find that any provision protecting religious liberty is diminished or abrogated. And I should say any protection of religious liberty in federal law. So it’s very broad. And the sort of things that were talked about when that provision was put into the Senate amendment was things like, “Well, you can’t read the RMA as overriding the Religious Freedom Restoration Act.”

 

But maybe a little bit more subtle, for example, you can’t read the RMA as somehow abrogating religious exemptions in Title VII of the Civil Rights Act of 1964. For example, there’s very valuable religious exemptions for religious employers when it comes to employment discrimination and so on.

 

Section 7(a) is also a rule of construction, and it ties back. It doesn’t say this, but I see it or understand it as, in part, tying back with Section 5. You recall Section 5 instructs the federal government when it needs a definition of marriage to look to the definition of marriage in the state where the marriage took place.

 

Well, here in Section 7(a), it’s saying, by way of construction, that the benefits -- when looking to federal benefits or accommodations, you’re to look to the definition of marriage in the state where the marriage took place, but that’s only when marriage is part of the equation. There are all kinds of federal benefits and accommodations and guarantees that are unrelated to marriage. And 7(a) is saying that, as a matter of construction, the RMA leaves those untouched.

 

So these two rules of construction, they somewhat overlap, but not entirely. And the way I kind of think about it is that 6(a) is that religious liberty is not diminished, but 7(a) is that certain federal benefits are not to be diminished.

 

All right. The second positive has to do with 6(b). I think this is the most peculiar provision, and I’m told it was added late at the suggestion of Senator Sinema from Arizona. And it creates a new substantive right, albeit a narrow one. It’s for religious non-profits only. And it says that they have a right to refuse the celebration or simply to be a host of the officiation or solemnization of a marriage.

 

So if you’re a non-profit religious organization and you don’t want to have a same-sex marriage take place in your church or other facility, here’s the substantive right to say no to that. Same thing about being a venue for the celebration of a marriage, like the marriage dinner or rehearsal dinner or something of that sort, which would be celebrating the marriage that has just taken place or is about to take place.

 

So, for example, if you’re a religious university or college and you have a chapel and you get requests from time to time for students or alums to use the chapel for a wedding, under these particular provisions, again, assuming you’re a religious non-profit, you could turn away use of the chapel because of a marriage that you had a religious objection to or a same-sex marriage.

 

All right. And then the third positive has to do with Section 2 of the RMA. Section 2 has findings, and there are 2 aspects to the findings which are of interest to religious liberty. The second finding is that there are diverse views concerning gender when it comes to marriage. In other words, there are diverse views that you support or oppose same-sex marriages, and that these diverse views are held by reasonable, sincere people. Those people hold premises, which are decent, honorable, and religious.

 

So this would be useful in the Bob Jones situation, where the IRS is supposed to declare public policy. And when the Congress of the United States—including 50 Democrats—are saying that a premises or decent, honorable, religious premises are acceptable and reasonable for the IRS to make a finding to the contrary would be made more difficult.

 

And the other aspect is that this also talks about interracial marriage. And the talk about reasonable and honorable positions are as to gender and marriage but not as to race and marriage. And what this is getting at is there’s a common argument by the LGBT side that there’s a moral equivalence between racism and discrimination against same-sex marriages. And this finding is contrary to that—making the moral equivalency of that.

 

All right. So that’s the third of the findings.

 

Matt Clark:  Mr. Esbeck, I’m sorry to jump in here. We got to go to Greg in about another minute or two, so just giving you a heads up. Go ahead.

 

Carl H. Esbeck:  Sure, all right. Why don’t I pass the mic to Greg right now?

 

Matt Clark:  All right, sounds good. Thank you. That was an excellent overview of the Respect for Marriage Act. So, Mr. Baylor, you’re up.

 

Gregory S. Baylor:  Well, thank you. Thanks to The Federalist Society for inviting me to participate in this discussion, and thank you, Matt, for moderating us. And I’m grateful to be part of this discussion with Professor Esbeck, who is an old friend and a mentor of mine and someone I admire deeply.

 

      I thank you, Professor, for your overview of what the bill does. However, I have to point out, right at the beginning, that we have an irreconcilable difference that I’m just not going to budge on. And that is it’s the RFMA, not the RMA. I’m just kidding; not a big deal. But I will refer to it as the RFMA.

 

      So what are the concerns that my organization and a lot of our allies have about the RFMA? Well, the first concern we have is that the bill isn’t really necessary, and I was happy to see Professor Esbeck agree that the likelihood of Obergefell being overruled is vanishingly small, and I wanted to flesh that out just a tiny bit.

 

      Think about the response to Roe v. Wade. It never captured the ascent of the majority of the American people, at least in the form that it was written in. And there was an immediate effort to try to overrule Roe v. Wade. States passed dozens of statutes designed to test Roe v. Wade and potentially set up a circumstance in which the Supreme Court can reconsider it. And compare that to what happened in the wake of the Obergefell case. I’m not aware of any state that has said, “Let’s pass some legislation designed to put Obergefell back before the Court.”

 

      And also, think about who raised the prospect of revisiting substantive due process precedence: one out of nine justices and one out of the five majority. And finally, Justice Breyer, who was commenting on the possibility of Obergefell being overruled at the Harvard Kennedy School of Government said he didn’t think there was any real possibility that that would happen.

 

      I also think that the inclusion of race and national origin in the bill demonstrates that I don’t think this was entirely about reasonable fears of Obergefell being overruled. They raised the prospect the Supreme Court was going to overrule Loving v. Virginia, in which the Supreme Court said that laws preventing the marriage of people from different races was unconstitutional. And no one thinks that’s going to happen in the United States, and I’d be surprised if we ever get to a place where it does. So I think the bill was unnecessary.

 

      Second, it does create a litigation and liability risk for non-governmental organizations, including religious organizations. Professor Esbeck said that the provision -- a provision of the RFMA says -- he said that no state shall refuse to give full faith and credit to a same-sex marriage. The language of the act is that no one acting under color of state law may refuse to give full faith and credit to a same-sex marriage. And that distinction is incredibly important.

 

      It’s a technical phrase—acting under color of state law—but it has real meaning and real impact in real life. More specifically, multiple kinds of non-governmental organizations have deemed to be state actors, have deemed to be acting under color of state law. And, of course, the tests for determining whether someone is a state actor or a non-government entity is a state actor are complicated, fact specific, subjective. And I think that’s part of the problem, right? If you don’t have a clear test, the risk that you’re going to face at least litigation, if not liability, for declining to recognize a same-sex marriage is itself a problem.

 

      And indeed, the process can be the punishment. The process of being sued even if one prevails in the case at the end of the day can itself be a problem and cause lots of organizations to change their views and their practices—certainly their practices regarding this. The best example, of course, is foster and adoption placement agencies. I think that they’re at particular risk: one, because they’re the kinds of non-governmental organizations that are deemed to be state actors because of the close working relationship that they obviously have with the government. Obviously, they’re working together to place kids. Kids are in custody of the state and all of that.

 

      So we have particular concern. And the case books have in them examples of non-profit entities, not religious ones, including foster placement and adoption placement agencies, being deemed to be state actors. So we’re concerned about that.

 

      Another thing we’re concerned about is tax-exempt status. The bill establishes, I think, a national policy in favor of same-sex marriage and by extension against discrimination on the basis of sexual orientation and gender identity. And the way the IRS works when it’s determining whether a non-profit organization is entitled to non-profit status is to ask whether it’s charitable. And when it asks whether it’s charitable, it looks to the common law of charitable organizations, and it discerns whether the non-profit is acting inconsistently with a national policy.

 

      And, of course, that was how Bob Jones University lost its tax-exempt status. The Civil Rights Act of 1964 established a firm national policy against racial discrimination. Bob Jones was engaged in racial discrimination, and the IRS said that the Civil Rights Act—among other things—established a national policy and took away its tax-exempt status, I think, rightly, not because the law -- the Civil Rights Act made it do so, but because the Civil Rights Act was a source of authority for the idea that engaging in race discrimination was against national policy. And we’re concerned that the same dynamic will play out here. 

 

      So it’s not necessary. It creates a litigation and liability risk, and it does raise the specter of the IRS revoking tax-exempt status from organization that hold to a traditional religious understanding of marriage.

 

      As Professor Esbeck pointed out, there are some reported religious liberty protections in the act. And our view is that these protections are inadequate. The first one has to do with the provision of the law that says, “Look, if you’re a certain kind of religious entity, you don’t have to participate in the solemnization of a same-sex wedding ceremony.”

 

Well, that’s all well and good, but this is a solution in search of a problem. I mean, there have obviously been multiple conflicts between LGBTQ interests and religious liberty and freedom of association. But efforts to force houses of worship to participate in a same-sex wedding is simply not one of them.

 

We’ve had same-sex marriage in at least one state since 2004, and our research has uncovered has uncovered exactly 0 cases in which one governmental authority tried to force a house of worship to participate in a same-sex marriage. I mean, it’s like passing a restriction that says, “You know what, government? You can’t tell Christian churches that they can exclude anyone from the Lord’s table or from the Eucharist.” Well, that’s a good thing, I guess, but it’s just not happening.

 

The real problem in the conflict between LGBT interests and religious liberty is things like employment. It’s things like places of public accommodation, like Jack Phillips and Barronelle Stutzman and 303 Creative, the case now in the Supreme Court. And folks who were skeptical about the RFMA proposed an amendment that would’ve dealt with that problem. And the majority of the Congress rejected it.

 

The other thing about that provision, it says -- it starts with the phrase “consistent with the First Amendment.” Well, what does that mean? I think it’s reasonable to worry that someone will read that to mean, “Well, you get the protection that the First Amendment gives you and nothing more.” That’s a possible reading, and it worries me that that phrase is in there as well.

 

It also says, as Professor Esbeck pointed out, that the RFMA will not diminish existing protections of religious liberty. And my response to that is, “Big deal.” I mean, this only means that the bill is not as bad as, say, the Equality Act, which explicitly says that the Religious Freedom Restoration Act will not be available as a defense to a case brought under the Equality Act. And obviously, you can’t -- Congress can’t eliminate protections under the Constitution because the Congress is subject to the Constitution. It can’t change it except by going through the amendment process.

 

The last thing is the tax-exempt status issue. I think it’s fair to say that the finding about reasonable and decent people have different views on the role of sex in marriage. But nothing in the law forbids the IRS from taking away the tax-exempt status of a non-profit organization that adheres to traditional views on marriage.

 

Finally, I’ve heard some say, “Well, the Religious Freedom Restoration Act will protect you. That’ll do the trick. You don’t need to worry.” Well, the first thing I would say is the Religious Freedom Restoration Act is not an absolute protection. It’s just a balancing test. It gives you the right to go into Court and argue that there’s -- a substantial burden has been imposed on you under the law. But then it’s up to the judge to decide whether what the government is doing to you is the least restrictive means of achieving a compelling governmental interest.

 

And you know what? Religious groups lose all the time on the Religious Freedom Restoration Act. So the existence of RFRA, certainly, it’s helpful, and I’m glad it’s there, but it’s not -- certainly not dispositive.

 

The other thing about RFRA is a lot of courts have said it’s not available in cases between private parties. You can only invoke it as a defense when it is the government that is—the federal government specifically—is coming after you. So that limits its reach as well.

 

And finally, in a somewhat more recent development, the Obama -- I’m sorry, the Biden administration has argued in the Ninth Circuit that the Religious Freedom Restoration Act does not limit the application of laws passed after the Religious Freedom Restoration Act, which would include the RFMA. So that’s kind of a disturbing development that would make the RFMA the Religious -- well, the RFRA’s protection from it to be less.

 

So we don’t think the bill was necessary. We think it does have serious conflicts with—or at least potential conflicts—with religious liberty. And the religious liberty -- purported religious liberty protections that were added towards the ends of the process, in our view, at least, are not sufficient to address our concerns.

 

Matt Clark:  All right. Thank you very much, Greg. I really appreciate that analysis of the potential problems here with the RFMA. We’re doing okay on time here. So, gentlemen, if you would like, I’d like to give you each about three minutes to respond to the points that your colleague has made, and then we’ll move onto questions. So, Professor Esbeck?

 

Carl H. Esbeck:  Matt, you say it like three minutes is generous. Well, let me say, even before the RMA, you could sue state actors—actors acting under color of state law—using the remedy of 42 USA 1983. And we didn’t see an onslaught of lawsuits there, even though the risk was there. And so I don’t see that this increases the risk—that the RMA increases the risk whatsoever.

 

      Concerning tax-exempt status being in jeopardy, Section 6(a), the rule of construction that we should read the RMA as not putting in jeopardy existing religious freedom, as well as Section 7(a), should -- and then the findings in Section 2, all of those should make more secure, I think, the 501(c)(3) tax-exempt status.

 

      As to Section 6(b), which is, I think, a modest substantive provision concerning celebration and solemnization, I think, maybe if I had clients of this sort, I would be primarily concerned that municipalities with non-discrimination ordinances, non-discrimination and public accommodations would invoke those sorts of civil rights thrusts, if you will. And I would see 6(b) being useful as a defense in those kinds of municipal public accommodation lawsuits.

 

      As to 6(b), when it begins with “consistent with the First Amendment,” I see that as in telegraphing what the congressional authority is, and it’s invoking Section 5 of the Fourteenth Amendment and seeing that particular provision as implementing, essentially, a church-autonomy kind of protection. So I don’t think it’s complete surplusage to say “consistent with the First Amendment.” I think it’s telegraphing where the congressional authority comes from.

 

Matt Clark:  All right. Thank you, Professor Esbeck. Mr. Baylor?

 

Gregory S. Baylor:  Sure. Yeah. Regarding the tax-exempt status issue, like I said, I think the findings are somewhat helpful, and it’s a good thing for the Congress to be saying that differing views about the role of sex in marriage are worthy of due respect.

 

      Two concerns I have about that, it’s the beliefs that are worthy of due respect, not the actions. And any effort by the IRS to strip a non-profit of its tax-exempt status because of its practices on marriage, the fact that their respective views doesn’t really restrain them.

 

      The other thing it says about giving due respect. Well, how much respect is due? There are many people and many government officials in this country who think that the respect due to organizations that believe marriage is the union between one man and woman, that the respect due is virtually nothing.

 

      Also, the piece about “we’re not going to undermine existing protections,” it doesn’t mean that the bill will not be interpreted—and it doesn’t say the bill will not be interpreted—to impair the exercise of religion. It just says, “Hey, we’re going to leave alone the protections that you already have.”

 

And as far as the preexisting availability of a Section 1983 case, I think there’s some merit to that argument. But, at the same time, when you create a new right to have your same-sex marriage recognized, it almost unnecessarily kind of stimulates the demand for lawsuits against organizations that don’t recognize or adhere to same-sex marriage. The creation of a new tool is also an attractive thing. You got this shiny, new object that you can use to go after folks on the other side.

 

And I think, finally—I said it before, but I’m going to say it again—this was a missed opportunity. This was a missed opportunity to provide real protection for religious liberty. We’ve got problems with non-discrimination laws in employment, health care, public accommodation, and an education context. Those are where the hot issues are.

 

And this bill, which could’ve done something—at least it should have done something to deal with that issue—it failed to do so. It’s likely that we will see a new version of the First Amendment Defense Act, which would’ve helped the problem, be introduced in 118th Congress. And I’m hopeful that that legislation will get some traction.

 

Matt Clark:  Excellent. Thank you, gentlemen. I’m really fascinated by this discussion. I want to go to some of the questions that we are getting from our Q&A feature here. We have one question that, I think, is absolutely excellent here about the interaction between RFRA and the RMA.

 

So the question is, “Would the Religious Freedom Restoration Act apply to government burdens appearing in the form of federal court orders adjudicating claims under the respect for Marriage Act? In other words, are federal courts part of the government that is being restrained from burdening religion under the Religious Freedom Restoration Act?” Gentlemen, what are your thoughts on that?

 

Gregory S. Baylor:  Carl, do you want to go ahead?

 

Carl H. Esbeck:  No, you take it.

 

Gregory S. Baylor:  Okay. Well, it’s really the identity of the litigants, not really the fact that the Court is involved adjudicating of a dispute between the litigants. So I would like it to be the case that you could invoke RFRA as a defense no matter who is suing you. But some courts have not agreed with that position, and they’ve said, “Look, only if the federal government itself—the EEOC, the Department of Health and Human Services, the Department of Labor—only when they’re suing you can you invoke the RFRA defense.”

 

      But if it’s a private party invoking a federal government law, like the RFMA, those courts would say, “You can’t invoke RFRA.” And the fact that a federal judge is adjudicating that dispute does not change that answer. So I think that’s my best shot at answering the question.

 

Matt Clark:  All right, excellent. Thank you, Greg. Professor Esbeck, any comments you want to add to that?

 

Carl H. Esbeck:  No.

 

Matt Clark:  All right, great. Well, let’s move on to another question. This one kind of comes back to the tax-exempt status issue that you guys raised earlier. The question is, “Can the Respect for Marriage Act create a national policy favoring same-sex marriage in a way that overrides religious liberty, like the 1964 law did with race versus religious liberty in the Bob Jones case, when the Respect for Marriage Act itself provides both for same-sex marriage and a variety of protections for religious liberty?”

 

      So it sounds like the person who asked this question thinks that it doesn’t necessarily create a national policy, but it might split the difference. Professor Esbeck, do you have any comments on that? And then, if so, Mr. Baylor?

 

Carl H. Esbeck:  I’m going to defer to Greg take the first shot at that.

 

Matt Clark:  Okay.

 

Gregory S. Baylor:  Sure. The determination of what is a national policy is not a precise undertaking. So the existence of religious liberty protections so-called either in the RFMA or outside the RFMA is not necessarily determinative as to what the IRS can and would do. Just to illustrate in the Bob Jones context, there were exemptions in state statutes—and arguably in federal statutes—outlawing race discrimination. And nonetheless, the IRS went ahead and said that Bob Jones was not entitled to its -- to a tax-exempt status.

 

      I mean, my argument is not that the RFMA itself compels the IRS to take away tax-exempt status. I’m just saying it’s part of the case that they would inevitably build. And that case would consist of other things: so it consists of non-discrimination laws that states and localities have passed, and it consists of non-discrimination regulations that the Biden and Obama regulations have issued. And there are exemptions in some of those.

 

Because the IRS has so much discretion in this regard, I don’t think that the presence of so-called “religious liberty protections” in the RFMA blocks them from saying that, “Look, you’re not entitled to tax-exempt status because you’re not charitable because you discriminate on the basis of sexual orientation.”

 

Matt Clark:  All right. Professor Esbeck, any thoughts?

 

Carl H. Esbeck:  Yeah, no. I have no follow up with that. Thanks.

 

Matt Clark:  All right, thank you. Okay. We have another question. “Will the Respect for Marriage Act have an impact on a religious university’s right to make employment decisions?” And, if you don’t mind, I’ll throw this one out to Greg first because I know you deal with this a lot at ADF in particular. So, Greg, what are your thoughts?

 

Gregory S. Baylor:  Yeah, no. I don’t think that it does. I mean, again, I’ve said before that the biggest problem is the litigation and liability risk under that provision of the RFMA that requires those acting under color of state law to recognize same-sex marriages. Well, are religious universities state actors? The answer is usually not. And in the overwhelming majority of circumstances, they just don’t qualify. The mere receipt of money from the government does not make one a state actor.

 

      The second issue would be is an employment decision—the refusal to recognize a same-sex marriage. And I think you could argue that both ways. It says “to give full faith and credit to a same-sex marriage recognized or created in another state. I’m not entirely convinced, especially if your policy -- your employment policy is not about same-sex marriage per se but it’s about sexual behavior outside of a marriage traditionally understood.

 

      So you might be able to sort of distinguish those two and say, “Look, RFMA.” But I think the state actor issue is what would protect a school in this circumstance. I would say, however, that an employment decision is the kind of thing that could get the IRS’s attention and say, “What these folks are doing is against public policy” and kind of initiate a process under which they might reconsider the tax-exempt status. But I think, for the most part, I think the answer is no.

 

Matt Clark:  All right. Professor Esbeck?

 

Carl H. Esbeck:  No, I have no follow up with that. Thanks.

 

Matt Clark:  All right. Let’s see. We have a few more questions here. There’s been some talk in this discussion about maintaining the status quo. Section 2(3) mentions interracial and same-sex couples. Have those two groups ever been placed next to each other in federal law? And, if not, how does this phrase change the status quo for religious liberty moving forward? Do either of you want to take a stab at that?

 

Gregory S. Baylor:  Well, I will say that race and sex appear together in tons of non-discrimination laws. I know that’s not precisely the question. But, as Professor Esbeck said, there is this idea that differential treatment based on sexual orientation or gender identity is sort of the moral and should be the legal equivalent of race discrimination.

 

      But the mere appearance of them side by side might support that argument. But protective characteristics sit next to each other in a lot of non-discrimination laws, and I would -- I don’t think you can draw the inference that they’re all equivalent. You have statutes that ban race discrimination but also ban appearance discrimination or political affiliation discrimination or veteran status discrimination.

 

      I think we would all say that race discrimination is just worse objectively than those kinds of discrimination. So I’m not sure I’m following the gist of the question, what’s being got at. But I don’t think it’s particularly significant, other than just this reflects the reality of the United States in 2023, which is same-sex marriage is a reality and is becoming less controversial than it had been in years past.

 

Matt Clark:  Absolutely. All right. We have another question. “Does the Respect for Marriage Act hurt the case of a Christian cake baker?” Greg, I know you touched on this briefly. You alluded to the Jack Phillips case. But, gentlemen, if I can get your thoughts because, honestly, for me too, this is my biggest concern about the law.

 

When we zero in on the question of what the language means when it says “operating under the color of state law,” I think that that probably does find government actors. The question is with private actors. How far can that be extended? And I know it may be case specific, but I’d be really interested to hear both of you elaborate on that point. Is this law likely to hurt somebody, like Jack Phillips and Barronelle Stutzman, or not?

 

Gregory S. Baylor:  Carl, do you want to go ahead, or do you want me to?

 

Carl H. Esbeck:  Go ahead, Greg.

 

Gregory S. Baylor:  Yeah. I think my answer is similar to the last one. I would say it’s even more rare that somebody in a private for-profit so-called secular business is a state actor. And so, I mean, the other -- on the other side, it just -- it furthers an environment in which individuals and organizations that aren’t “on board” with the new understanding of marriage are going to face more scrutiny.

 

      But I think if someone tried to sue Jack Phillips under the RFMA that they would not succeed because there’s no evidence that Jack is a state actor. Now, that’s not to say that there aren’t lots and lots of private organizations that have been deemed to be state actors: state high school athletic association, bail bondsman, state bar associations, cooperative extensions, drug testing companies, foundations, housing -- I’m reading off a list, obviously.

 

      But there are lots and lots of private organizations that are deemed to be state actors. So the fact that the proprietor of a small business that has contact with the wedding industry, the fact that they’re not state actors doesn’t mean that our fears about state actors, like foster adoption agencies being sued at least—and, if not, held liable under the statute—doesn’t mean those concerns are unwarranted.

 

Matt Clark:  All right. Professor Esbeck, any thoughts you want to add to that?

 

Carl H. Esbeck: Yeah, no follow up.

 

Matt Clark:  All right. I have one question of my own. I had a list of questions going through, but you guys answered pretty much all of them. I have one outstanding question, though. Since the Respect for Marriage Act, it creates not only a private cause of action but allows the U.S. Attorney General to bring an action.

 

What do you think the chances are of the Federal Justice Department getting involved in actions like these? And, if so, do you think that the Federal Justice Department would be more likely to be fair and consistent with the text of the statute? Or I’d say the Justice Department has come under a lot of criticism from those on the right for being politically charged. So if the Federal Justice Department had to get involved, how do you two see that going? Professor Esbeck, do you want to answer that first?

 

Carl H. Esbeck:  I guess you’ve got a lot of imponderables there because it depends on who the attorney general is and who his or her lieutenants are and who they’re taking their signals from, the extent to which it’s a political matter as defined by the White House or simply a legal matter to decide under the law of the land and the facts. And so I’m not quite sure. There’s just so many loose ends there that it’s hard to project.

 

Matt Clark:  So the classic lawyer answer, “It depends,” right?

 

Carl H. Esbeck:  Yeah.

 

Matt Clark:  All right, thank you. Greg, any thoughts on that?

 

Gregory S. Baylor:  I agree with Carl. It’s really hard to predict. There have been plenty of instances in which government agencies have behaved in a manner that seems unfair. We think of the IRS and its treatment of applications for non-profit status by Conservative Tea Party back in the day, and it happens. I think it’s because it’s kind of human nature and the way the system works. But to make a more precise prediction is, I think, it’s really hard. But at least those of us who are concerned about that phenomenon have to be wary and watchful.

 

Matt Clark:  Understood, understood. All right, gentlemen. Well, we got just a couple minutes left. So let’s take this opportunity just to make some closing comments. If each of you want to take about a minute to make some concluding remarks, and we can go ahead and wrap this up. So, Professor Esbeck, would you like to go first?

 

Carl H. Esbeck:  Boy, I’m not sure where to go by way of closing. There’s obviously a lot of imponderables here, and some of them are legal, and some of them are policy questions. And policy questions are going to be driven by whoever the administration is. And so I think we’re on some new frontiers here, and it’s hard to be real certain about of where we think we’re headed. So stay tuned; there’s more to come. Greg?

 

Gregory S. Baylor:  Yeah. So there’s an emerging kind of meta narrative about the RFMA, that it reflects kind of cooling of the temperatures in the conflict between LGBTQ interests and religious liberty and freedom of speech. And I don’t think that’s true. I really don’t. And it goes back to my argument about the significance of the alleged religious liberty protections.

 

      At the end of the day, the same-sex marriage side didn’t really give up anything meaningful. I would say that the only concrete concession that was made was on this solemnization thing: that churches and houses of worship don’t have to solemnize same-sex marriage. And, as I noted before, that’s not happening. Thankfully, I mean, lots of other things are happening, but that is just not happening. So I don’t characterize that. I don’t accept that as a capitulation of any substance.

 

      And by the way, if a church got sued for refusing to solemnize a same-sex marriage without the RFMA, they would clearly win under the Constitution. I mean, that’s a clear-cut violation of church autonomy doctrine. That’s not a hard case. So I don’t think this means, “Oh, the Congress is going to pass some grand compromise between religious liberty and SOGI” or that the attitudes about the legitimacy of religious organizations and others adhering to their traditional views of marriage has changed. So I don’t think there’s cause for thinking that the landscape has changed. It’s still very, very polarized, and people are dug in, and I think that’s the way it is right now.

 

Matt Clark:  All right. Well, gentlemen, thank you so much for being here, and my thanks to all of you who jumped in and participated in this call. This has been incredible and enlightening. So, Professor Esbeck, Mr. Baylor, thank you very much. Chayila, do you have anything to add?

 

Chayila Kleist:  I’ll just wrap up. I’ll echo that thanks on behalf of The Federalist Society and myself, both thanks to our experts for the benefit of their valuable time and expertise today and to our audience for joining and participating.

 

We welcome listener feedback at [email protected]. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. Thank you all for joining us today. We’re adjourned.

 

 

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