2013 represented a significant turning point in the marriage equality fight with the Supreme Court’s overturning of the Defense of Marriage Act (DOMA), but the next — and possibly last — phase of that effort is already taking form. What’s left is for the Supreme Court to address whether state constitutional bans on same-sex marriage violate the rights of gay and lesbian couples, and with cases in Nevada, Utah, Ohio, and Oklahoma already headed to the appellate level, that could happen within the next few years. In the meantime, opponents of marriage equality are doing their best to slow the momentum and limit the recognition of same-sex marriages as much as possible.
At the federal level, opponents currently have three proposed strategies for rolling back some of the recognition that same-sex couples now have. Particularly in the wake of the Utah and Oklahoma decisions, groups like the National Organization for Marriage (NOM) and Family Research Council (FRC) have been emphasizing two talking points: that states should have the right to establish their own definition of marriage and that the religious views of people who oppose marriage equality should be protected. Each of the three proposed strategies would limit same-sex marriage to a certain extent according to these talking points, but the principles that inform each strategy are in conflict with each other.
While none of the three plans seems to be politically viable, here’s a look at how conservatives are tripping over themselves to stem the tide of marriage equality.
The State-By-State “DOMA-Light” Approach
The strategy that NOM, FRC, and others seem most enthusiastic about of late is Rep. Randy Weber’s (R-TX) “State Marriage Defense Act of 2014,” (SMDA) introduced just this month. NOM’s Brian Brown thinks this bill is important because it would solidify “the right of states to make their own determinations regarding marriage.” It would eliminate the “place of celebration” standard that the federal government has established for recognizing same-sex marriages when they cross state lines. Were it to pass, married couples who enter a state that doesn’t recognize their marriage would also lose their federal benefits.
This is essentially “DOMA-Light”; where DOMA limited the federal recognition of same-sex marriages in any state, SMDA limits federal recognition only to states that also view the unions as legal. Weber admitted when he proposed the bill that he hadn’t fully read the Windsor decision overturning DOMA, which explains why he’s trying to implement basically the same kind of discrimination that the Supreme Court ruled was unconstitutional. Ironically, opponents lauded DOMA for establishing a consistent definition of marriage across the country, and this bill does just the opposite.
Likewise, implementation of SMDA would be incredibly impractical — imperiling the rights of same-sex couples and their families should they ever travel state to state. Still, this approach is actually the one that most abides the espoused principle that states’ definitions of marriage should trump all else.
The Everybody-Who-Wants-To-Discriminate-Should-Be-Able-To Approach
Another bill introduced last year in both the House and Senate is the “Marriage and Religious Freedom Act” (MRFA), which takes the exact opposite approach as the SMDA. Brian Brown believes this bill will “help protect chuches and people of faith” from “judicial tyranny.” Rather than bother with what states or the federal government do as a whole, MRFA would allow individuals to use their own religious beliefs to justify not legally recognizing a same-sex marriage. In other words, it would implement a blanket license to discriminate against same-sex marriages across the country.
While it’s unclear how exactly this bill would play out if passed, it seems to be written vaguely enough that it could apply to all individuals, including those in crucial roles. Conceivably, employers could deny benefits to same-sex spouses, hospitals could refuse to recognize same-sex marriages for purposes of visitation, and individual government employees could refuse to process same-sex couples joint tax filings. In this new free-for-all, even legally recognized same-sex marriages would have no force of law if anybody had a religious objection.
This approach directly violates conservatives’ claims that state definitions of marriage should take precedent. MRFA would directly undermine the marriage laws in states that do allow same-sex marriage by making it optional for anybody to actually recognize those marriages.
The Nuclear Approach: A Federal Marriage Amendment
Social conservatives’ third plan would simply change the rules with a constitutional amendment. If the U.S. Constitution limited marriage to one man and one woman, then it would no longer be up to the states, and the Supreme Court couldn’t do anything about it. While the other two bills are at least novel approaches, the Federal Marriage Amendment (FMA) is a tried-and-failed method that has only declined in viability with each attempt in Congress, but Rep. Tim Huelskamp (R-KS) is willing to try again.
NOM’s Brian Brown has been adamant that the FMA is “the surest way to protect marriage from the attacks of activist judges and out-of-control politicians, and to prevent a radical redefinition of marriage from being foisted on the whole nation.” Unfortunately, supporting such a measure would mean abandoning all support for the notion that the Constitution should protect states’ right to define marriage. It also directly infringes upon the “religious freedom” MRFA would supposedly protect, by rejecting the religious beliefs of all those who do support marriage equality.
The fact that the underlying principles of these three strategies conflict isn’t surprising, because the “states’ rights” and “religious freedom” arguments are straw men designed to distract from the actual experience of same-sex couples. Opponents of marriage equality have been trying to sugarcoat their positions so that it looks less like they are trying to discriminate against gay people, because that legally hurts their case. Setting aside one group of people for disparate treatment violates the Constitution’s guarantee of equal protection under the law, which is exactly why the federal judges in Utah and Oklahoma ruled against those states’ bans on same-sex marriage. Such an intent to discriminate, however, is exactly what unites these three proposals — and it’s about the only thing that does.