love marriage,” Representative Nancy Mace (R., S.C.) wrote in an op-ed for Fox News: “In fact, I love it so much I’ve already done it twice and am engaged for a third time. And if gay couples want to be as happily or miserably married as straight couples, more power to them.” Hence her support for the Respect for Marriage Act, which already passed the House with 47 Republican votes and is on its way to passing the Senate.
Mace’s flippancy encapsulates a view of marriage that has become all too common. Marriage is no longer a means of harnessing the brute facts of biology into the service of children. It is purely a means to the end of the married parties’ happiness. It means whatever they want it to mean. Permanent, if you wish; exclusive, if you like; between people of the opposite sex, if you prefer.
The older view of marriage was wiser. The original definition was based on the biological reality of sexual complementarity, one man and one woman, that works to advance a social ideal: that husbands and wives gratefully receive the children their unions beget, and that all family members take seriously their obligations to one another. When this works well, societies flourish. When it doesn’t, they suffer.
Our marriage culture is ailing, with children routinely born out of wedlock, high levels of household instability, and falling rates of marriage and childbirth. Same-sex marriage, which was not long ago advertised as a cure for the weaknesses of modern marriage — remember the “conservative case for same-sex marriage” — has, at minimum, failed to arrest these trends. At worst, it has further clouded our culture’s understanding of what marriage is.
To prefer the old definition is not to disregard same-sex partners whose love, loyalty, and friendship are deep and enduring. But their interests could have been accommodated without redefining marriage, and in principle still could be.
Some conservatives say that since same-sex marriage is a fait accompli — written into the law by the Supreme Court and sustained by public opinion — we should settle for a compromise that protects religious freedom and democratic pluralism. The Respect for Marriage Act, alas, falls far short of that description.
The bill’s new sections on religious liberty provide no new meaningful protections. Its provision that “nonprofit religious organizations,” including churches, mosques, and synagogues, shall not be required to provide goods or services for the “solemnization or celebration of a marriage” is a fig leaf. The real-world legal disputes regarding the “solemnization or celebration of a marriage” involve government authorities trying to force individuals — bakers, florists, web designers — to violate their consciences by performing work that they believe celebrates same-sex marriage. Conscientious objectors have had to spend years and fortunes trying to invoke these protections. The new law would do nothing to stop this kind of harassment. It merely says that existing protections such as the First Amendment and the Religious Freedom Restoration Act (RFRA) will continue to exist. In fact, by excluding conscience protections adopted under state law, it could be read to bar states from offering broader protections for religious liberty, thus turning the bill in practice into a one-size-fits-all federal mandate.
Moreover, the bill does not protect nonprofit social-service organizations from being punished by the government for upholding their views on marriage while carrying out charitable work in areas such as adoption and foster care. Nor does it address concerns over nonprofits’ tax-exempt status. The bill’s supporters are touting the fact that it does not itself take away tax exemptions as though it were a great concession. If the authors of the bill wanted to protect the tax status of religious nonprofits, they could have easily done so. But, again, by creating a narrow list of conscience protections, it would strengthen the hand of efforts to strip such protections from every person and institution not mentioned.
Claims to the contrary notwithstanding, Obergefell is not in jeopardy. There is no movement in the states trying to overturn the decision. Only one Supreme Court justice has signaled any interest in revisiting Obergefell, and the majority opinion in the Dobbs ruling emphasized that “rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’” In the unlikely event a serious challenge to Obergefell were to be brought through the courts, the legal analysis of whether to uphold the precedent would be quite different from the Dobbs case. Of course, it would take years for such a case to be decided by the Supreme Court, giving Congress ample time to act. So why has the Respect for Marriage Act been pursued? The goal is to enshrine the new view of marriage as the official consensus of the nation. Those who think that this effort can be separated from an attack on dissent are kidding themselves. To respect both marriage and pluralism, the right vote is no.