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Betrayed Again
Just when I started to believe that the Republicans in Congress might actually be ready to act boldly, they have betrayed us again. It’s difficult for me to determine whether I am angrier with the Democrats for proposing this deceitful bill, the Respect for Marriage Act, or with the Republicans for lining up behind them. This Act further damages and weakens our religious liberties, in particular our support of traditional marriage, and it reminds us that the Progressive Left will never stop infringing on our rights and freedoms.
So what’s the big deal? A dozen Republicans have decided that they want to cozy up to the Democrats, or are too lazy or foolish to study the real intentions of the bill, or simply don’t care:
The 12 Republicans who voted yes on Wednesday were Susan Collins of Maine, Rob Portman of Ohio, Thom Tillis of North Carolina, Mitt Romney of Utah, Shelley Moore Capito of West Virginia, Cynthia Lummis of Wyoming, Dan Sullivan of Alaska, Roy Blunt of Missouri, Richard Burr of North Carolina, Joni Ernst of Iowa, Todd Young of Indiana and Lisa Murkowski of Alaska.
For anyone who wants to read the bill, go here.
What are the real dangers built into the bill? Mike Lee and several of his Senate colleagues wrote to their peers about the potential dangers and solutions in the legislation:
Instead of subjecting churches, religious non-profits, and persons of conscience to undue scrutiny or punishment by the federal government because of their views on marriage, we should make explicitly clear that this legislation does not constitute a national policy endorsing a particular view of marriage that threatens the tax exempt status of faith-based non-profits. As we move forward, let us be sure to keep churches, religious charities, and religious universities out of litigation in the first instance. No American should face legal harassment or retaliation from the federal government for holding sincerely held religious beliefs or moral convictions. My amendment would ensure that federal bureaucrats do not take discriminatory actions against individuals, organizations, nonprofits, and other entities based on their sincerely held religious beliefs or moral convictions about marriage by prohibiting the denial or revocation of tax exempt status, licenses, contracts, benefits, etc. It would affirm that individuals still have the right to act according to their faith and deepest convictions even outside of their church or home.
Although several supporters of the bill admitted it had problems, Mike Lee’s amendment wasn’t supported. In fact, no amendments were considered, although several were submitted.
Other possible attacks on religious institutions may be on the horizon:
H.R. 8404 abandons all current limits in federal law requiring marriage to be the union of only two persons. Under H.R. 8404 all it takes is a single state to recognize a polygamous or other unusual union as a marriage and the federal government must automatically recognize it for all federal purposes, including tax deductions, welfare benefits, immigration status, and federal employee benefits.
And as outrageous as polygamous marriages may seem, they also have the potential for being legalized:
There are upwards of 60,000 people practicing polygamy without legal recognition in the United States today. Public support for polygamy has more than tripled since 2010 to nearly one in four people today. In 2020, Utah reduced the criminal penalties for living in polygamous relationships to infraction status. Organizations such as the Polyamory Legal Advocacy Coalition, with support from Harvard Law School, are pushing for legalization of polyamorous unions. Two cities in Massachusetts, Somerville and Cambridge (home to Harvard University) have recently granted official Domestic Partnership status to plural unions. Nothing in Obergefell prohibits any state legislature in the country from following Cambridge’s lead, nor does it prevent a state Supreme Court from imposing polyamory or polygamy by interpretation of its state constitution.
And one other outcome that will make individuals and organizations vulnerable:
Anyone merely alleging a harm would be able to sue under H.R. 8404. Activists will argue that faith-based foster care providers, state-funded religious social service organizations. and religious organizations and businesses that provide services under contract with the government are acting “under color of State law” to, at the very least, impose costs on and harass institutions that seek to live their beliefs about man-woman marriage without having to withdraw from civic or public life.
* * * *
Some people will see these concerns as overreactions or extremes. Ten years ago, we wouldn’t have believed there would be social support for gender mutilation surgery, CRT, taking away control from parents for their children’s education, border invasions or censorship by the media. I think the House Freedom Caucus sees the future clearly:
‘This vote is about more than culture. It is about affirming the self-evident truth that marriage is a natural institution that predates government,’ the letter reads. ‘Republicans must stand united in defense of that truth and the institution of marriage which forms the backbone of a healthy society. There can be no compromise on this question.’
Unfortunately, I doubt that the Republicans are listening.
Published in Politics
No, that’s not correct. The mechanism by which states would be required to respect each other’s laws under this statute is the federal Full Faith and Credit Clause. If the federal government narrows the definition to two people in the law that achieves that end, the forced reciprocity that results is narrowed to two people, too.
That has been the case since Obergefell was decided. Now, as long as someone says that a marriage completes their dignity, then the State will, eventually, be forced to recognize it. This is a good and a bad thing. The good thing is that the State should be out of the marriage definition game. There isn’t any legal basis for the State to judge unions of consenting adults. It’s a bad thing because it will lead to a ton of social issues that we can only barely contemplate right now. Justice Kennedy created this system and until his decision is overturned/clarified, there really isn’t any reason that the State could restrict any marriage in any form.
The Senate’s version of the bill is even more explicit than the House’s:
That is exactly one-half of one lawsuit from being rendered meaningless.
Okay, but that’s always true. The question was whether the bill still had that lacuna in it, and the answer is that it does not. Every statute can be overridden by a lawsuit, as all the ones defending traditional marriage were in 2015. Any lawsuit that successfully abused the 14th Amendment to further change the definition of marriage would achieve that end irrespective of whether this bill were passed. The question isn’t whether this amendment is bulletproof; the question is whether it’s preferable. It is.
The language of Lee’s proposed amendment seems to cover the plural marriage question, but I haven’t read any legal evaluations by trusted sources to verify that its solid enough for at least the current Supreme Court to not undermine (an outright progressive majority would dictate what they want regardless, though they would prefer some manner of semi-plausibility to retain the illusion of functioning institutions for low-information voters).
I do agree, however, that the Senators who voted for the legislation as-is are awful, though if its not already too late, it would be most pragmatic to give them a mulligan provided that they change their vote in time to block a full Senate vote on the un-amended legislation (Senate procedures are confusing, I’m unclear on whether its already too late for that….in which case, it would be time for those severe consequences).
I’m getting a bad headache . . .
Since Trump has already announced that he is running for president, should Trump give a speech saying that if he were president he would veto the legislation on same sex marriage? Or should Trump stay silent on this issue?
Silent. And the legislation is not about same sex marriage.
. .
Shouldn’t every Republican presidential candidate speak out about this legislation? Why should candidates for president keep their position secret? Don’t voters deserve to know where the candidates stand on this?
Let’s not make this about Trump, please. This is a no-Trump zone, remember? (I know we had an earlier digression, but that’s over.)
Said the Thief to the Joker.
Yup. Not hard to imagine the Federal position that “We do not recognize this marriage, but we must enforce the full faith etc etc”
If the law being used to enforce full faith and credit in this area does not not recognize polygamous marriages, as this bill now explicitly does not, then there can be no such federal position.
The risk —and this is always true —is that a rogue Supreme Court will declare polygamy a right, and strike that portion of the law, along with the bans on polygamy in every state, as it did in Windsor with DOMA’s definition of marriage as between a man and a woman, and in Obergefell with the state laws. That risk is not heightened or diminished by this law, or by this amendment; it exists independently of it.
And ObamaCare isn’t a tax.
The amendment sounds like a good band-aid (best we can do with Democrat control everywhere) on an imminent amputation.
I confess that I’m not following any of this closely — this thread and several links from here are as deep as I’ve gotten. I do not know what the Democrats will take away from our culture with this law, but it will be something or else they wouldn;t bother. Progressives are evil, not stupid, and some of them are flat-out brilliant.
Your Obamacare comparison makes my point precisely. As I wrote, the risk does not lie in improving the laws that ban or refuse to recognize polygamy, “the risk —and this is always true —is that a rogue Supreme Court will declare polygamy a right.” Obviously, though, that risk is not attached to making our laws better than they would have been otherwise, as the amendment stipulating that marriage is between two people would undoubtedly do; it’s attached to having people on the Supreme Court who do not care what the law says in the first place.
As such, the question is not whether the Supreme Court could, if it wished to, bastardize this law, as it did with Obamacare; the question is whether you want the law it will eventually deal with to be clearer than it was when first drafted. The choices are a) a law that says explicitly, “this law applies only to marriages between two people” or b) a law that does not say that. Assuming that this is going to pass and be signed, I think the answer is obvious.
One reason for this is that, while the Court could blow the whole thing out of the water — again, irrespective of this law, which would not have an affect on such a ruling either way — the biggest risk in the short run is that the executive branch will try to use it to force the rest of the states to recognize a polygamous marriage that was conducted in the first state to recognize polygamy. With this amendment, the statutory case that would result from that attempt would be pretty clear cut, where before it was not.
I am not sure that it matters. The Executive, if Democrat, appears to be allowed to do pretty much whatever he wants too.
I disagree. You won’t find a stronger critic of executive overreach than me. It’s probably the thing I care about the most. But that’s exactly why tightly written laws are so important. If you look at the successful challenges to Biden’s overreach since he became president — the eviction moratorium, which was struck down; the OSHA vaccine mandate, which was struck down; the EPA rule, which was struck down; and the student loan case, which has been stayed in two different courts, and will probably be struck down (although that’s still an open question) — the plaintiffs prevailed precisely because the statutes in question contained enough plain language to make it impossible for the courts to get around the limits. One of the biggest projects for conservatives in the coming years should be to rewrite a lot of federal law to make it clearer and to remove any sentences that resemble “the president shall” or “in the judgment of the secretary,” etc.
I agree with your point, Charlie, but I would also point out that if the Supreme Court at some point swings Left, they will likely be more forgiving of Executive Action. But I think we could find all kinds of reasons to be skeptical about whether the law will hold, and at some point I think we have to wait and see and hope for the best.
I don’t disagree with those instances. And I could find many more where standing was used to block, or something that was not a tax became a tax. Every win in court always seems by the skin of our teeth. I hate having to depend on courts, so I am with you we need to have laws written as best we can. I am expressing skepticism that it will ultimately matter. I would have rather these 12 not join with the Democrats to pass this in the first place.
I promise that I am going to be a good solider and vote GOP down the line. I will vote for the GOP nominee no matter who it is (which is more than I can say for some). I just have lost faith. Is it OK to you that I express my loss of faith?
Of course it is. It’s also none of my business!
That may be a Ricochet first.
As for my ambitions on regulation, well I have said this before:
I admit, I could not find my original post in the search system so I reposted.
The Senate legislation passed with 61 votes, including 12 Republicans, in favor and 36 votes against. The US House will vote on this legislation.
Emergency covid powers! Some federal judge might rule against it, but so what?
OMFG @charlescwcooke is mixing it up in a Ricochet thread!!!
**swoon**
**thunk** (keels over)
I love it. He is pretty smart and funny