House Democrats, with the assistance of 47 Republicans, last week passed legislation under which the federal government would recognize any marriage if it is legally performed in any of the 50 states.
The bill also would allow the nation's attorney general to file civil action lawsuits against states that refuse to recognize marriages in other states.
The so-called Respect for Marriage Act, which would repeal the 1996 Defense of Marriage Act, now goes to the Senate, where it will require 60 votes to overcome a likely filibuster.
Although recent polling data suggests that Americans overall are more accepting of gay marriage than they were years ago, Heritage Foundation research assistant Jared Eckert warns that the House-passed bill could have dire consequences if passed by the Senate and signed into law by President Joe Biden.
“If one state—just one state—recognizes polygamy as a legitimate marriage or legal marriage, then basically, the federal government has to do that,” Eckert says.
Eckert joins “The Daily Signal Podcast” to discuss that and other possible unintended consequences of the Respect for Marriage Act, and what states can do to ensure that the federal government doesn't trample on their rights.
We also cover these stories:
- President Joe Biden is reported to be “on the mend” from COVID-19, even as Sen. Joe Manchin, D-W.Va., says he has contracted the virus.
- Sen. Lindsey Graham, R-S.C., proposes raising from 65 to 67 the mandatory age for commercial pilots to retire.
- A new poll suggests 2 in 3 Americans favor term limits for Supreme Court justices.
Listen to the podcast below or read the lightly edited transcript:
Doug Blair: My guest today is Jared Eckert, a research assistant in the Richard and Helen DeVos Center for Life, Religion, and Family here at The Heritage Foundation. Jared, welcome to the show.
Jared Eckert: Thanks for having me. I'm super excited to be here.
Blair: Great. Well, let's get started then. Let's talk about this bill making its way through Congress that would codify gay and interracial marriage into law. There's been a lot of discussion about this bill. Is it a good bill or a bad bill?
Eckert: Last week it was passed in the House, by a 267 to 157 vote, with actually 47 Republicans voting in favor of it. You asked the question, [saying] this is a bill for codifying same-sex marriage and interracial marriage. Well, quite frankly, that's not what it's about, because neither of those things are under threat, by any means. This is just an alarmist overreaction to the [Supreme Court's] overturning of Roe v. Wade.
If you actually look at the opinion of Dobbs [v. Jackson Women's Health Organization], for example, which is what [House Speaker Nancy] Pelosi and others are citing for why we need this legislation, the court explicitly recognizes that Dobbs only addresses abortion, it doesn't address anything else.
People are citing clearance [Justice Clarence] Thomas' concurrence, but even he recognizes explicitly, look, there are some legal questions about substantive due process, but at bottom, this only applies to abortion. The court universe all recognize that in their majority opinion.
Blair: OK. The other question about what this bill would do is whether the states would be compelled to recognize the type of marriage that they maybe weren't wanting to do. For example, if Alabama failed to recognize gay marriage, would that be a problem under this bill?
Eckert: One thing that's important to understand is that this bill doesn't actually change the legal landscape at all. States are already required to recognize same-sex marriage given Obergefell [v. Hodges] and [United States v.] Windsor, Supreme Court cases ruled in the last 10 years, five to 10 years. The legal landscape is already set so that states have to recognize same-sex marriage as legitimate and as legally recognized.
This bill is really, again, what's important for people to understand is that this bill's really a publicity stunt, trying to, again, divert attention from Democrats' radical policies.
One thing to keep in mind is that this bill comes in the middle of two administrative regulations that are being rolled out. One was a proposed rule by the Department of [Education] that would redefine sex under Title IX and basically require anyone who identifies as a woman to be allowed to participate in basically any school activity or program, this includes facilities. While the administration tries to skirt around whether that includes sports, there's nothing explicitly barring it from including sports.
Then it also comes before the Department of Health and Human Services are going to roll out a rule that would likewise redefine sex under the non-discrimination clause of the Affordable Care Act. Again, in an attempt to push a radical policy of, we need to make transgender transitioning basically standard care in the medical space.
This is coming between two radical policies. It is itself a radical policy, something else I think we need to understand. This is a Trojan horse. This, again, has nothing to do—if there's no threat to same-sex marriage or if there's no threat, legally speaking, to interracial marriage, then what is this bill really about? We've already talked about the publicity stunt thing, but the thing we need to recognize is that this is really about codifying something more radical, specifically polygamy.
Blair: Oh, wow.
Eckert: Obergefell recognized that it redefined the federal definition of marriage between a man and a woman to basically include any two individuals. This bill goes even further and says basically whatever a state recognizes as marriage has to be federally recognized as marriage. If one state, just one state, recognizes polygamy as a legitimate marriage or legal marriage, then basically the federal government has to do that.
This creates tons of problems for basically all the laws on the books regarding marriage, tax code, welfare, you name. It just creates a mess.
Blair: OK. Just to really sink that in, for example, if a state decided that bestiality, that marrying a dog would be legal, this bill would say that at the federal level that would have to be recognized.
Eckert: Yeah, yeah.
Blair: I mean, that's shocking. It seems like that would be insane. How does that function as an aspect of federal law, where it basically would say one state gets to dictate the entirety of marriage law in the entire country?
Eckert: Yeah. Well, this is exactly the point, is historically and presently, the state has never had interest in people's feelings, their romantic lives. The whole point of why federal law even recognized marriage as something special is because it has an interest in the welfare of children, the welfare of the family, because when families thrive, children thrive, civil society thrives.
The reason for these laws is, again, because of a natural social institution that is actually better for society. It's not discriminating against single people or, before Obergefell, same-sex attracted individuals. It was simply about recognizing that, naturally, marriage is ordered toward procreation and parents are best at raising their kids, and when those families thrive, civil society thrives.
Blair: This is actually looking like it might pass with Republican support. There have been a lot of Republicans who have gone on the record, senators who have said that they will vote for this. How did a party that had traditional marriage between a man and a woman for a long time as part of its platform shift so radically in this direction?
Eckert: Yeah. This shift, I think, really is a fulfillment in this sexual revolution. You get a lot of people making those comments. I think it's important to recognize that transgender ideology that we're seeing pushed in schools, that we're seeing come through courts, through laws, basically these are connected. It's a rejection of the personal significance of biological reality, that our bodies are actually part of who we are and that they shape and define the world we live in.
But what's important here, again, is just to draw attention that we don't need to rehash the marriage debate. We recognize, again, that Obergefell didn't change the nature of marriage, it just legally redefined it. Marriage is still marriage.
I think what we need to recognize is that this is, again, just the left's attempt to draw attention off of its radical policies, to build a Trojan horse to sneak something more extreme than even Obergefell did into federal law, and again, in time for midterm elections. This is an attempt to get the eyes off the Democrats, off the left, and to force GOP members to hash out a debate.
The shift in a public opinion has maybe gone toward same-sex marriage, but the reality is it's a mile wide and an inch deep. It's just something that we don't need to rehash and Republicans shouldn't take the bait.
This is something that needs to be met with real, honest, objective look at the facts, which says this is not under threat. This is a non-issue, when we've got so many other things we've got to be concerned about, from inflation, war in Ukraine, again, gender ideology in schools, transitioning children. There are plenty more concerns we have than same-sex marriage right now.
Blair: To play devil's advocate for a second, there are some who argue this is how the process should work. This may be a very bad bill, that's entirely possible, but the court has said in their decision to overturn Roe v. Wade that these types of decisions, these types of wide-reaching decisions, are not the responsibility of the judiciary. They are, in fact, the responsibility of the people and their representatives. What are your thoughts on that?
Eckert: Yeah. Again, this is one of the things that if the left had actually tried to push this through legally, they wouldn't have been able to do it prior to Obergefell, so there was a sort of judicial activism.
Again, I think Thomas talks about the substantive due process that has been used, this doctrine that's been used to create rights that aren't actually in the Constitution.
Given that they've had the court win, now they're basically trying to force a vote on something that, again, regardless of what people say or believe, the state has an interest in family and marriage, natural marriage, and that this shouldn't be seen as something that—yeah, maybe it's for the people to decide, but this is a non-issue right now. Again, just want to keep drawing back to that point.
Regardless of what the process is and how people should decide it, the point is that why are we focusing on this issue, why are we drawing attention to this issue, which isn't even under threat given the current legal landscape?
Blair: One thing that I guess I'm curious about is, since this will be federal law, this would be something that would affect Americans at the federal level, the states couldn't intervene necessarily, will this bill have any spillover, say, for free speech and free exercise of religion? We've already seen the court has had to deal with a number of cases that have dealt with people's objection to serving same-sex weddings. Would this bill have any impact on those?
Eckert: Yeah, it puts a lot of organizations at risk. We saw this in Philadelphia, the Fulton case last summer was connected to that.
The city of Philadelphia basically saw that Catholic Social Services were performing a state function and that if they were going to “discriminate” and refuse to place with same-sex couples because they held a sincere belief that marriage is between one man and one woman, they shut down Catholic Social Services, saying, “Look, you can't do this. This is discrimination.”
Fulton [v. City of Philadelphia] ruled in Catholic Social Services' favor, rightfully, maintaining that religious organizations do have the freedom to operate according to their sincerely held beliefs.
I think it's just worth keeping in mind that if this bill were to pass, any organization that could be alleged to be acting “under the color of state law,” is the language of the bill, then they could be sued. We know that there are activist groups, again, that have already been doing this work. It's not a matter of if, it's a matter of when.
The other thing I'd add is that this creates grounds for the IRS, for example, to deny nonprofit status, tax-exempt status, to organizations that refuse to place with same-sex couples, again, because of their sincerely held beliefs.
Blair: Extending that out further, obviously, as you were saying, this bill could theoretically legalize polygamy, so that would apply then to families of four or five individuals living in a house.
Eckert: Exactly, and could create, especially in the child welfare space, a lot of problems and questions that our legal landscape hasn't addressed. It just creates a mess out of the whole situation.
Blair: Interesting. As we begin to wrap-up here, I'm curious, if this bill is to pass, what can states do and frankly, what can individual Americans do to counter the worst parts of it? Is there any way to do that?
Eckert: Yeah. I think the first thing is that we need to be making sure that elected officials have the resources they need to understand this issue. This bill, it creates a lot of problems. I don't think it has to get to that point. What we have yet to see in the next couple weeks is whether people can become informed about what's going on and do what they need to do to ensure that their elected officials are representing them.
Blair: Excellent. That was Jared Eckert, a research assistant in the Richard and Helen DeVos Center for Life, Religion, and Family here at The Heritage Foundation. Jared, very much appreciate your time.
Eckert: Thanks for having me.
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