The GOP Reach-Around on Gay Marriage

The Supreme Court may have legalized gay marriage nationwide, but conservatives see an opening for a good old-fashioned attempt to reach around those black robes.

There’s a groundswell of support in Republican ranks on Capitol Hill over a piece of legislation that would shield religious individuals, businesses, and institutions from extending gay couples the equal rights the Court just extended them.

The legislation, dubbed the First Amendment Defense Act, would prohibit the federal government from “discriminating” against anyone whose “religious belief or moral conviction” confines them to viewing marriage as between one man and one woman.

“Our bill ensures that no federal agency will target organizations or individuals who believe marriage is between one man and one woman,” said Representative Raul Labrador (R-Idaho), the bill’s lead sponsor in the lower chamber. “For example, no group should lose its tax exempt status because of its views on marriage. All Americans should be free to believe and act in the public based on their beliefs about marriage without fear of government retaliation or penalty.”

More than 130 House Republicans along with 35 Senate Republicans are pushing the proposal. For most supporters, the Court’s sweeping ruling far from settles the issue.

“When the Supreme Court on a 5-4 decision creates out of whole cloth a constitutional right that was not only absent from the Constitution but counter to 6,000 years of history, one could suggest that the issue isn’t settled,” said Representative Trent Franks (R-Ariz.).

The basis for this effort is an exchange during oral arguments between Justice Samuel Alito and U.S. Solicitor General Donald Verrilli:

Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax­exempt status if it opposed interracial marriage or interracial dating. So, would the same apply to a university or a college if it opposed same­-sex marriage?

General Verrilli: You know, ­­I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is—it is going to be an issue.

In Bob Jones University v. United States the court ruled the federal government could take away the tax-exempt status of the fundamentalist school because it refused to recognize interracial marriages or allow blacks and whites to date while attending the school (one could even be expelled for arguing in favor of interracial marriage!).

Seems like an odd case to hinge a contemporary proposal on, right?

Not to Alabama Senator Jeff Sessions, a former U.S. Attorney and a senior Republican on the Senate Judiciary Committee.

“I think that was a problematic ruling and at the time it was widely discussed how broadly that ruling could be extended and potential problems it would create,” Sessions said in the basement of the Capitol. “Anybody that denies that doesn’t understand law.”

According to Sessions, the “slippery slope” set up by Bob Jones University v. United States has now been realized some 30 years later in its ruling on gay marriage.

“Are we at a point where a church is required to renounce its teachings or Biblical—what they believe are Biblical—principles or lose their tax-exempt status?” he asked rhetorically.

Even supporters of the First Amendment Defense Act are distancing themselves from that defense of religiously cloaked bigotry from another era.

“No. No. Absolutely not,” said Senator John McCain (R-Ariz.) when confronted with Session’s argument. He argued Justice Alito wasn’t even advocating that view. “Alito asked him, ‘Would the same kind of standard apply?’ And we just want to make sure that people have the right to practice their religious beliefs.”

Republican presidential candidates in the Senate have endorsed the effort to undermine the Court’s ruling.

Senators Ted Cruz (Texas), Marco Rubio (Fla.) and Lindsey Graham (S.C.) are all original cosponsors of the bill. Kentucky’s Rand Paul is the only Republican in the upper chamber vying for the White House who hasn’t co-sponsored the bill.

Most of the bill’s supporters recognize they’re walking a tightrope and are trying to keep the conversation very narrow, even as the legislation is crafted quite broadly.

“Religious liberties have been under attack by the Obama administration on many fronts,” said House Majority Whip Steve Scalise, who recently cosponsored the bill. “There’s a lot on interest in making sure we give proper protections to people based on the First Amendment of the Constitution, so that they are comfortable they can exercise their religious beliefs.”

So is gay marriage the new Roe v. Wade—that perpetual, contentious debate that never seems to go away?

“I hope not,” said Representative Richard Hanna (R-N.Y.) “For me, I’ve always supported gay marriage and marriage equality and I regard it as a point of tolerance and I’m rather pleased with the Supreme Court’s decision.”

Hanna says he still needs to review the bill, because he wants to protect the tax-exempt status of religious institutions that disagree with the Court, though he says he may not be able to because it also encompasses private businesses.

This assault on the freedom just granted same-sex couples is proving a headache for moderate Republicans who hoped a gavel from the high court ended the contentious debate and saved their party some face in the process.

“The Supreme Court has ruled. I believe it’s a settled issue and I don’t see the point in re-opening it,” argued Senator Susan Collins (R-Maine). “The Court was very careful in its decision. Justice Kennedy distinguished between civil ceremonies and religious ceremonies and acknowledged that religious ceremonies would not have to perform unions of same-sex couples. So, I felt the decision struck the right balance.”

She’s not as lonely in that view as she would have been even just a few years ago.

“I think we should definitely just go along with the Supreme Court decision,” said Senator Mark Kirk (R-Ill.), who is up for reelection. “I want to make sure that people are not free to discriminate in America. The only way to solve a freedom problem is to provide more freedom.”