A lightly edited version of Utah Republican Sen. Mike Lee’s speech on the Senate floor regarding the religious liberties that are endangered by the Respect for Marriage Act, compliments of editors at The Heritage Foundation’s The Daily Signal:
Madame President, today, as popular winds blow against the man and woman of faith, we should look to the Constitution and remember that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. We do a disservice to all Americans if we elevate the rights of one group at the expense of another.
On the one hand, there’s no existing threat to same-sex marriage. It is and will remain legal nationwide regardless of the outcome of this legislation before us, the Respect for Marriage Act.
On the other hand, we have current, real, sustained ongoing assaults on religious freedom. How we proceed today will do nothing to the status quo of same-sex marriage in this country. It’s legal and will remain legal regardless of the outcome of this legislation.
It will, however, if enacted, have profound consequences for people of faith.
In the wake of the Dobbs decision, proponents of this legislation have conjured up a series of hypothetical scenarios resulting in an imagined threat to the ability of same-sex couples to marry and enjoy the privileges of marriage. The rhetorical slippery slope goes something like this. First, they claim that some unknown, unnamed state is on the verge of passing an unknown, yet to be proposed or imagined law prohibiting same-sex marriage. Next, they imagine that federal district courts will uphold this hypothetical state law despite the crystal-clear direction within the Dobbs and Obergefell opinions from the Supreme Court. Should that adventure of unlikely hypotheticals transpire, they envision a case making its way all the way up to the Supreme Court of the United States.
All of this, despite the lack of political will anywhere in the United States to prohibit same-sex marriage. Should that happen, proponents of this bill contend that there is a non-zero chance that one justice could decide to analyze the right to marry, not through the prism of substantive due process, as it has been since Obergefell was decided in 2015, but rather through the lens of the 14th Amendment’s privileges or immunities clause.
Proponents of the bill cite a single line within Justice [Clarence] Thomas’ concurring opinion and suggests that one justice could effectively destroy legal recognition of same-sex marriage, not just prospectively, but undoing currently legal same-sex marriage.
Now, this, Madame President, is a complete fantasy.
I’m not aware of a single state in the United States threatening to pass any law infringing the ability of any same-sex couples to marry or enjoy privileges associated with marriage, nor am I aware of a single state threatening to invalidate, within their borders, marriages entered into in other states, nor is it at all clear that Justice Thomas himself was suggesting that Obergefell be overturned.
He was suggesting that it be analyzed, like all substantive due process jurisprudence, to figure out whether there might be another provision of the Constitution under which it might be more appropriate. They were attributing to him statements he didn’t make, they were attributing to him analysis he didn’t even undertake in that one statement regarding the doctrine of stare decisis, and then they were attributing to state’s intentions they do not have and have not expressed.
My colleagues have yet to offer even a single example of a same-sex marriage threatened by any current or pending state legislation, not one, not a single one, and they intentionally misinterpret Justice Thomas’ concurring opinion in Dobbs and claim that the sky is falling, but it’s just not happening.
Unfortunately, we are aware of case after case where individuals, charities, small businesses, religious schools, and religious institutions are being hauled into courts to defend themselves for living out their faith. These people are not committing hate crimes against their neighbors. No, they’re not abusing peers for their personal choices either. No, they’re being hauled into courts across this country for serving the poor, the needy, and the refugee in compliance with their sincerely-held religious beliefs.