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House members propose new anti-gay bill

DOMA trials LGBT Legal Cases Marriage equality Marriage Equality Trials Windsor

Capitol Hill
Capitol Hill
A National Organization for Marriage-endorsed bill that purportedly is aimed to protect religious liberty, but targets same-sex couples, has been introduced in Congress. The bill would potentially have far-reaching repercussions for federally-funded organizations and federal workers who may be opposed to same-sex marriage. Think Progress has a link to the bill, and points out that the language is very broad:

The Federal Government shall not take an adverse action against a person, on the basis that such person acts in accordance with a religious belief that marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.

The legislation is endorsed by several well-known anti-gay organizations:

An array of conservative organizations and religious groups have endorsed the legislation, including the U.S. Conference of Catholic Bishops, the National Organization for Marriage, Family Research Council, and the Ethics & Religious Liberty Commission of the Southern Baptist Convention.

The National Organization for Marriage calls the bill “critical”:

“This is a critical piece of legislation to protect religious liberty as a cornerstone of our country and deserves our full support,” said Brian Brown, NOM’s president. “Efforts to redefine marriage pose a direct threat to the free exercise of religion. This legislation would protect the right of organizations to communicate their views about marriage without threat that the tax code will be used to punish them. We applaud Congressman Labrador and his colleagues for their leadership on this important issue.”

According to the Washington Blade and Think Progress, pro-LGBT organizations are worried about the bill’s effects on the Supreme Court’s recent decision striking down Section 3 of the federal Defense of Marriage Act in United States v. Windsor. Think Progress notes several ways in which LGBT people may be adversely affected:

  • Businesses could refuse to provide leave for an employee to take care of a sick same-sex spouse.
  • Federal workers processing tax returns, visa applications, or Social Security filings could refuse to do their job if it meant providing benefits to a same-sex couple.
  • Federally funded programs like homeless shelters and substance abuse programs could turn away LGBT people.
  • A church-run hospital could refuse to provide visitation privileges to a married same-sex couple without fear of endangering their tax-exempt status.

  • The Blade suggests that people would be able to “pick and choose” which federal laws to comply with, based on their own religious views.

    Professor Dale Carpenter, who writes at the libertarian-leaning Volokh Conspiracy, suggests the bill would also run into several Constitutional problems:

    MARFA raises very interesting questions of statutory construction, public policy, antidiscrimination law, and potential applications and burdens for married same-sex couples. It also raises potential Establishment Clause issues in its partiality toward certain religious doctrines (i.e., applying only to those who oppose, rather than favor, same-sex marriage for religious reasons). After United States v. Windsor, there are also potential Equal Protection problems in MARFA’s targeted protection of acts motivated by opposition to same-sex marriage. I haven’t looked at the proposal in detail, but my preliminary reaction is that parts of MARFA (especially those constraining the IRS) will be politically popular, and that other parts may be seen as overreaching. Whether there is an actual need for any of it, politically popular or not, is an additional question, and whether its protections justify the burdens it may place on married couples is yet another.

    The bill currently has 60 cosponsors, including two Democrats.

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