[Congressional Record Volume 168, Number 183 (Tuesday, November 29, 2022)]
[Senate]
[Page S6847]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                        Respect for Marriage Act

  Ms. LUMMIS. Mr. President, I rise today to underscore the crucial 
importance of the religious liberty provisions in the Respect for 
Marriage Act, which was just passed by the Senate, and to ensure the 
legislative intent behind these provisions is crystal clear.
  As you know, the U.S. Supreme Court's decision in Obergefell v. 
Hodges from 2015 established a constitutional right to same-sex 
marriage.
  When Obergefell was argued, then-Solicitor General Verrilli was asked 
whether recognizing a constitutional right to same-sex marriage would 
lead to churches, religious organizations, and other not-for-profits 
potentially having their tax-exempt status reconsidered in light of the 
Supreme Court's decision in Bob Jones University v. United States. 
Solicitor General Verrilli responded that ``it's certainly going to be 
an issue.''
  In recognizing a constitutional right to same-sex marriage in 2015, 
the U.S. Supreme Court did not reconsider the Bob Jones University 
precedent, leaving this issue unresolved.
  The Respect for Marriage Act, with the substitute amendment that I 
cosponsored with Senators Sinema, Collins, Baldwin, Portman, and 
Tillis, answers this question and a number of others, providing strong 
protections for religious liberty, especially when combined with the 
Religious Freedom Restoration Act.
  I want to thank my friend, the Senator from Arizona, for her hard 
work on this bill and her willingness to address key questions around 
religious liberty in a thoughtful and bipartisan way.
  It is my understanding that section 2 of the Respect for Marriage 
Act, in light of the Supreme Court's Bob Jones v. United States 
decision in 1983, would prevent the Internal Revenue Service from 
successfully arguing that the United States now has a ``national 
policy'' favoring same-sex marriage and would prevent the IRS from 
using this national policy argument to deny tax-exempt status to 
religious organizations.
  I want to ask my friend, the Senator from Arizona, is this your 
understanding, as well?
  Ms. SINEMA. I thank my friend, the Senator from Wyoming. Yes, this is 
my understanding. Section 2 of the bill states that a variety of 
reasonable views on the role of gender in marriage exists today, based 
on both decent and honorable religious and philosophical beliefs. The 
bill states that all views are due proper respect by the Federal 
Government.
  Furthermore, section 2 of this bill states the Federal Government 
recognizes religious liberty as an integral component of our national 
policy regarding marriage. Section 2 of this bill was explicitly 
included to ensure that the provisions of the Bob Jones case relating 
to the tax-exempt status of organizations are not applicable to this 
bill.
  Bob Jones University v. United States, decided in 1983 before 
Congress enacted the Religious Freedom Restoration Act, upheld the 
IRS's decision to rescind Bob Jones University's tax exemption on the 
basis of a ``firm and unyielding'' national policy against racial 
discrimination. Section 2 affirms that diverse beliefs about the role 
of gender in marriage are held by reasonable and sincere people based 
on decent and honorable religious or philosophical premises. This 
finding preempts an analogy between the Court's analysis in the Bob 
Jones University case about race and beliefs about marriage and is a 
statement of policy respecting diverse views about the role of gender 
in marriage.
  I would like to discuss another provision which is central to this 
bill: section 4, which grants ``full faith and credit'' under article 
IV, section 1 of the U.S. Constitution to marriages performed in each 
of our States, strengthening federalism and making our constitutional 
structure work.
  Section 4 of the bill states that no person ``acting under color of 
State law'' may deny full faith and credit to any ``public act, record, 
or judicial proceeding of any other State pertaining to a marriage 
between two individuals, on the basis of sex, race, ethnicity, or 
national origin of those individuals.'' The phrase ``acting under the 
color of State law'' is also used in our civil rights statutes to refer 
to the actions of State and local government officers and employees 
with respect to rights guaranteed by the U.S. Constitution and Federal 
law.
  Senator, is it your understanding this phrase is intended to 
incorporate the U.S. Supreme Court's interpretation of the meaning of 
``acting under color of State law''?
  Ms. LUMMIS. Yes, it is my understanding that use of this phrase in 
section 4 of the bill is intended to incorporate the U.S. Supreme 
Court's interpretation of this term, including, but not limited to, the 
case Rendell-Baker v. Kohn and NCAA v. Tarkanian cases.
  I would like to now turn to section 6 of the bill, which provides 
that no church or religious nonprofit will be forced to solemnize or 
conduct a marriage ceremony under this bill.
  Is it your understanding that section 6(b) bars ``any civil claim or 
cause of action,'' without exception, relating to a church or religious 
organization's refusal to solemnize or celebrate a marriage under this 
section, and the text does not state that it can be overruled by a 
court in finding a ``compelling governmental interest''?
  Ms. SINEMA. Yes, it is my understanding section 6(b) bars any civil 
claim or cause of action relating to a nonprofit religious 
organization's refusal under that section to solemnize or celebrate a 
marriage and that such a refusal cannot create a civil claim or cause 
of action.
  The text of section 7 also makes no reference to ``compelling 
governmental interests.'' Section 7 provides nothing in this bill 
should be construed to deny or alter the benefit, status, or right of 
an otherwise eligible individual or legal entity in relation to tax-
exempt status, tax treatment, contracts, loans, scholarships, licenses, 
and other agreements not arising from a marriage.
  In conjunction with section 2 of this bill, which eliminates a 
successful analogy to the Bob Jones case, is it your understanding, 
Senator, that section 7 would prevent the Internal Revenue Service from 
using the Respect for Marriage Act to alter or remove the tax-exempt 
status of an entity for expressing beliefs in opposition or support of 
same-sex marriage?
  Ms. LUMMIS. Yes, that is my understanding, as well, regarding the 
scope of section 7.
  This bill is intended to enshrine a national policy of respect for 
all views surrounding marriage and to enact some of the strongest 
religious liberty protections since the Religious Freedom Restoration 
Act in 1993. This legislation also ensures that religious liberty will 
have more of a central role in future debates in our courts and in the 
Halls of Congress.
  I would like to thank my friend from Arizona for her tireless work on 
these issues and her willingness to work together, as always.
  The PRESIDING OFFICER. The Senator from New Mexico.

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