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Same-sex marriage legislation divides conservatives ahead of vote next week

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A rainbow flag flies as the Supreme Court is seen in the background.

The Supreme Court in 2017, as a gay rights case was being heard. (Brendan Smialowski/AFP via Getty Images)

There is a distinct difference in how groups on the left and right are reacting to a bill that supporters say would enhance protections for both gay rights and religious freedom.

The Senate has advanced the Respect for Marriage Act (RFMA) past a key obstacle, overcoming the filibuster with 62 votes last week, including from 12 Republicans. The legislation is expected to receive a final vote next week.

There is some complaining on the left about the bill from voices with large audiences on social media. But by and large, the major LGBTQ advocacy groups back the bill.

And even among those who have criticized the RFMA, there is general agreement that they want the legislation to become law.

I hate the Senate bill and we need it to pass,” wrote Charlotte Clymer, a transgender author who worked for the Human Rights Campaign, one of the nation’s largest gay rights organizations.

Clymer argued that the bill does not “codify” gay marriage, but noted it would protect the marriage licenses of gay couples who are married now if the U.S. Supreme Court ever overturned the 2015 decision that legalized same-sex unions, Obergefell v. Hodges.

Charlotte Clymer stands at a podium during a rally.

Charlotte Clymer speaks at a rally to support transgender troops in 2019 in Washington. (Joy Asico/AP Images for Human Rights Campaign)

And, Clymer said, full federal recognition by Congress of gay marriage is not likely anytime soon as long as 60 votes are required to pass anything under the filibuster.

But on the right, opinions of the legislation are split. There is a coalition of religious groups that back the bill, or that back the religious liberty provisions and want the bill to pass despite their belief that their faith teachings do not allow them to support gay marriage.

This group includes the National Association of Evangelicals, the Church of Jesus Christ of Latter-Day Saints, the Union of Orthodox Jewish Congregations of America, the Seventh-day Adventist Church, the Council for Christian Colleges and Universities, the And Campaign and the 1st Amendment Partnership.

Many of these groups “think like religious minorities,” said Tim Schultz, president of the 1st Amendment Partnership, a religious freedom advocacy group. “So it’s not surprising that they seek pluralistic solutions to their challenges.

“Many others don’t think that way,” Schultz said in an interview on “The Long Game,” a Yahoo News podcast. “They do not think of themselves as a religious minority, and they carry themselves in the public square very differently in ways that I think are actually part of the reason that they are achieving minority status.”

And in fact there is vociferous resistance to the marriage legislation from a number of prominent social conservatives, and the opposition of many is absolute. This group includes the U.S. Conference of Catholic Bishops, Franklin Graham of Samaritan’s Purse and the Billy Graham Evangelistic Association, Al Mohler of the Southern Baptist Theological Seminary, Ryan T. Anderson at the Ethics and Public Policy Center, the Missouri Baptist Convention and other figures who work for institutions like the Heritage Foundation, Alliance Defending Freedom and World magazine, an evangelical publication.

Anderson outlined the absolutist case against the Senate bill last week.

A protester outside the Supreme Court holds an umbrella that reads: Repent America.

A protester outside the Supreme Court in 2017. (Brendan Smialowski/AFP via Getty Images)

“Marriage is a natural and supernatural institution before it is a political institution. Human law should reflect the natural law and eternal law. No Senator should vote to allow the government to redefine what marriage is,” Anderson tweeted.

When Anderson was asked on Twitter if he would support a bill with even more expansive protections for religious freedom along the lines of an amendment proposed by Sen. Mike Lee, R-Utah, he said he would not, even though he favored the Lee amendment and said it offered “meaningful religious liberty protections.”

Critics of Lee say he has done little to work constructively toward a compromise on these issues. Lee spokesman Lee Lonsberry told Yahoo News that the senator “attempted repeatedly to engage all involved in negotiations” on the marriage bill, but did not answer a question about what form those attempts took or when he made them.

“His proposed amendment to the Respect for Marriage Act has been developed over a long period of time and with input from a wide range of religious organizations and individuals,” Lonsberry said.

Schultz said that the intent of the RFMA is to reassure both sides that their worst fears will not be realized, by crafting protections for each.

Schultz, like many on the right, does not think it’s at all likely that the Supreme Court would overturn Obergefell. He sees Justice Clarence Thomas’s opinion in the Dobbs decision that overturned Roe v. Wade — in which Thomas raised the possibility of doing away with same-sex marriage — as an outlier.

“But I guess I would say this: For people who are worried about [Obergefell being overturned], we ought to have good faith and try to make sure they understand that those marriages that have been legally entered into aren’t going to be nullified,” Schultz said.

Utah Republican Senator Mike Lee holds up his pocket Constitution.

Utah Republican Sen. Mike Lee at an election night party on Nov. 8 in Salt Lake City. (Rick Bowmer/AP)

The RFMA ensures that if Obergefell were overturned, marriage licenses would still be valid and states that have legalized gay marriage would still be able to issue licenses in the future. Further, those licenses would have to be recognized in states where gay marriage is not enshrined in law.

“And I think it’s the same spirit that I appreciate, that supporters of same-sex marriage have said, ‘Oh, you’re [meaning religious organizations] worried that you’re going to lose your tax-exempt status? We think that’s really unlikely, but guess what, we’re going to say we’re not going to do that,’” Schultz said.

“So some of this is really saying to each other, ‘I think the risk of what you’re worried about is pretty low, but how about we make sure that you don’t have to worry about it at all?’” he told Yahoo News.

Conservative author David French wrote that each side has a moment in the past few years that “haunts” them. For conservatives, it is then-President Barack Obama’s solicitor general, Donald Verrilli, saying in oral arguments in 2015 that a college that opposed same-sex marriage could be treated by the federal government in the same way that the IRS stripped Bob Jones University of its tax-exempt status for opposing interracial marriage and dating. For liberals, it is Thomas’s opinion about overturning Obergefell.

Some on the right argue that the RFMA does make it more likely that religious organizations could lose their tax-exempt status if they refuse to hire a gay person or could lose grants or accreditation if they choose not to open up adoptions to gay couples, for example.

Jim Obergefell holds a photo of his late husband, John Arthur, as he speaks to members of the media outside the Supreme Court.

Plaintiff Jim Obergefell holds a photo of his late husband, John Arthur, after the Supreme Court handed down a ruling regarding same-sex marriage on June 26, 2015. (Alex Wong/Getty Images)

But that claim is “disregarding the statutory text,” according to a group of conservative legal scholars led by Douglas Laycock, a University of Virginia law professor who has successfully argued significant religious freedom cases at the U.S. Supreme Court in recent years.

Laycock and three other constitutional law scholars said that the RFMA “is a good and important step for the liberty of believers to follow their traditional views of marriage.”

“Its protections for religious liberty, while not comprehensive, are important, especially in the context in which [RFMA] arises,” Laycock and the other experts wrote.

The Laycock letter also noted that both gay rights and religious freedom advocates have failed to advance their causes when they have refused to engage in compromise.

The law scholars noted that Lee’s effort in 2015 to pass a more expansive religious liberty bill, the First Amendment Defense Act, could not get 60 votes in the Senate despite the fact that Republicans controlled both chambers of Congress. The bill would have protected organizations opposed to same-sex marriage or homosexuality in general from “discriminatory action” by the federal government, among other provisions.

Laycock and his fellow scholars say that Lee’s 2015 bill failed because it did not include protections for LGBTQ people.

“LGBTQ-rights proponents have failed to secure their goals in Congress through the Equality Act, or in many state legislatures, because they have been unwilling to make provision for religious liberty,” the conservative legal scholars wrote. “The lesson applies to conservatives as well. Efforts like the First Amendment Defense Act (FADA) have likewise failed repeatedly because they made no provision for recognizing LGBTQ rights even in an incremental way.”

Senator Mike Lee speaks during a hearing on Capitol Hill.

Lee at a committee hearing in 2016. (Mark Wilson/Getty Images)

“Religious liberty has been caught in the crossfire of warring groups unwilling to accept the smallest gain for the other side. And religious liberty has suffered as a result,” they wrote. “This bill offers a chance to counter those trends and to enact religious-liberty protections in a bipartisan measure.”

Matthew Lee Anderson, founder of the conservative Mere Orthodoxy website, wrote that “these are not the only religious liberty protections we need, at all.”

“Yet the gains here are not negligible, either,” he added. “What is lost is — well, the answer to that depends on how realistic it is to think that Obergefell will be overturned within the next 10 years.

“I think I understand why the Religious Right is opposed to RFMA. What I do not understand is regarding that political judgment as so obvious that any conservative who supports it has somehow departed from conservatism, much less Christian orthodoxy,” he concluded.

Cover thumbnail photo illustration: Yahoo News; photo: Jacquelyn Martin/AP

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