Known Unknowns: The Respect for Marriage Act
December 13, 2022
Faith-based nonprofits will likely face more lawsuits and government actions challenging religious freedom after Congress passed the Respect for Marriage Act (RMA) repealing the Defense of Marriage Act of 1996.
The RMA impacts faith-based organizations in two specific situations. Both relate to interactions between the faith-based organizations’ work and the state and federal government.1
The threats to faith-based organizations remain despite language in the RMA purporting to protect religious freedom. Both supporters and skeptics of the RMA agree that the RMA’s religious freedom language has no “meaningful effect.”2
Below are key questions and “known unknowns” related to the RMA’s impact on faith-based nonprofits.
1. What does the RMA do?
The RMA prohibits certain parties from denying claims or rights related to same-sex marriage. The parties affected could include faith-based organizations working with the state or federal government to offer foster care, immigration relief, and other humanitarian aid. These organizations may not be able to continue operating in accordance with their beliefs on marriage in contexts such as placement of children in foster homes and certain employment matters.
2. When and how would a faith-based organization be subject to the RMA?
Receiving state aid and collaborating in state programs are two ways that a faith-based organization may become subject to the RMA. Common programs involving collaboration between the state and faith-based organizations include those providing immigration relief services, disaster relief, foster care, low-income housing, educational opportunities, and similar humanitarian and educational services.
It will not be easy to know for sure whether the RMA will be applied to an organization.
The uncertainty arises because the RMA uses a technical, legal term to define the organizations the RMA impacts. This technical phrase refers to persons acting “under color of state law.”3 In the past, courts have applied this phrase to regulate the conduct of private actors under certain circumstances.
Opponents of religious freedom can exploit the uncertainty. The RMA gives these opponents a legal argument and the power to bring a claim. Many faith-based humanitarian organizations do collaborate with the state on relief efforts, so the argument that they are within the RMA’s scope is plausible.
As Roger Severino, Heritage Foundation Vice President for Domestic Policy, writes, the ambiguities “may seem nuanced from a lay perspective, but they are the stuff of an enterprising lawyer’s dreams.”4
The second context in which a faith-based organization might be subject to the RMA is when the organization is subject to one of the more than 1,000 federal laws and regulations that include marital status.5 This situation is discussed in more detail below.
3. The RMA changes the definition of marriage in “any federal law, rule, or regulation in which marital status” is a factor. What does this mean? Does this affect faith-based organizations?
Faith-based organizations that are subject to federal laws and regulations in areas such as education, employment, and funding are impacted by the RMA. Organizations may not immediately notice a change because the definition of marriage in more than 1,000 laws and regulations had already been temporarily changed by federal agencies under President Obama following a Supreme Court decision.6
The RMA makes this change permanent. Now, even if case law and the executive branch’s position change, the federal government cannot change its policy position on marriage without another act of Congress.
4. Why do people say the law jeopardizes religious organizations’ tax-exempt status?
The RMA places tax-exempt organizations’ exemptions in jeopardy, not because of the RMA’s text alone but because the RMA establishes an official federal government policy position on marriage. When all three branches of the federal government take a policy position on a social issue, then organizations with different views may have their exemptions denied or revoked.
Supporters of the RMA often assert, “There is nothing in the text of the Act that jeopardizes tax-exempt status.” This is technically true yet misleading. The RMA functions as the final piece in a puzzle that does place tax-exemption in jeopardy.
In 1970, the IRS issued guidance stating that an organization with activities that are contrary to a federal government public policy position cannot receive tax exemption.7 Opponents of religious freedom will likely argue that, through the RMA, the federal government has established a public policy position on marriage. As a result, organizations with other policy views could end up in the crosshairs.8 Hopefully such challenges would have a favorable outcome, but, with legal disputes, the process is the punishment.
For a detailed rebuttal of arguments about the RMA’s impact on tax-exempt status, see ADF President and General Counsel Kristen Waggoner’s analysis in World Magazine.9
In addition to challenges to tax-exempt status, challenges to other religious exemptions from federal law are likely. In fact, litigation on similar points in the Title IX and Title VII contexts is already underway.10
5. If a faith-based organization successfully defends itself in an RMA lawsuit, can the organization recover the costs of litigation?
No. Concerningly, the RMA is intentionally excluded from the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988(b), which allows a court to award attorneys’ fees to the prevailing party. The provision is normally standard in civil rights statutes creating a private cause of action.
This standard generally favors plaintiffs seeking civil rights protections by reimbursing the injured party for the costs of defending his or her rights. The standard also provides at least some minimal protection for wrongly accused defendants who are the target of frivolous or unreasonable claims.
Sen. Mike Lee’s amendment would have included this standard. The fact that his proposal was declined raises questions about whether the supporters of the RMA, in fact, intended to facilitate litigation against faith-based organizations.
6. Does the RMA provide any protections for religious freedom beyond those required by the First Amendment?
Few, if any, additional protections for faith-based organizations beyond the minimum required by the Constitution are present in the RMA. In fact, both supporters and skeptics of the RMA conclude that the religious freedom protections have no “meaningful effect.”11
The RMA does not void existing religious freedom protections in other statutes, such as the Religious Freedom Restoration Act. However, the RMA introduces new infringements on religious freedom without providing new protections. Of course, the RMA does not, and cannot, void protections available under the First Amendment.
7. Are all faith-based organizations eligible for the narrow religious freedom protections that are available in the RMA?
Not all faith-based organizations can be certain they qualify for the marginal religious freedom protections of the RMA. The RMA states it protects “nonprofit religious organizations” but then provides a narrow list of organizations within that category.12 Moreover, as described below, even eligible organizations receive only limited protection.
8. What is the scope of the RMA’s religious freedom protections? While solemnization and celebration of marriage are not required, what about other activities that would violate sincerely-held religious beliefs about marriage?
The RMA does not expressly protect operating in accordance with religious beliefs about marriage. The RMA’s language only protects beliefs and actions related to the solemnization of a marriage.13
Accordingly, the scope of the Act could be interpreted broadly enough to compel faith-based organizations to perform other acts that do violate their sincerely-held beliefs on marriage. For example, a faith-based foster care organization with a state license may be forced to choose between facilitating placements in family situations that do not comport with the organization’s sincerely-held religious beliefs and discontinuing foster care service altogether.
9. What’s next?
Experts note that the full ramifications of this act will not be immediately apparent. Napa Legal will continue to provide strategic updates.
Byron York, The needless act to ‘protect’ marriage, The Washington Examiner
Roger Severino, Answering the Critics of the Critics of the Respect for Marriage Act (RFMA), The Heritage Foundation
1 See Eric Holder, Memorandum on the Implementation of United States v. Windsor, available at https://s3.documentcloud.org/documents/23307308/holder-memo-windsor.pdf, p2; see also https://www.justice.gov/iso/opa/resources/9201421014257314255.pdf; “Defense of Marriage Act: Update to 1997 Report - 2004” (PDF). U.S. General Accounting Office. https://www.gao.gov/assets/gao-04-353r.pdf;
2 Mark Joseph Stern, Progressive Critics Are Wrong About the Senate’s Landmark Marriage Equality Bill, Slate, Nov. 15, 2022, available at https://slate.com/news-and-politics/2022/11/vote-on-marriage-equality-senate-gay-rights-win.html (stating “[T]he Senate amended the RFMA to include protections for religious liberty. None of these additions would have any meaningful effect.”). https://adflegal.org/article/what-you-should-know-about-respect-marriage-act (concluding “[T]he new section simply states that those Americans whose beliefs are infringed can invoke already existing legal protections, like the First Amendment and the Religious Freedom Restoration Act (RFRA)…Those targeted under the bill will be forced to spend years in litigation and thousands of dollars in attorneys’ fees to protect their rights.”)
3 The bill expands on language from a historic law, 42 U.S.C. § 1983.
4 Severino, Answering the Critics, supra note 11.
5 See Eric Holder, Memorandum on the Implementation of United States v. Windsor, available at https://s3.documentcloud.org/documents/23307308/holder-memo-windsor.pdf, p2; see also https://www.justice.gov/iso/opa/resources/9201421014257314255.pdf; “Defense of Marriage Act: Update to 1997 Report - 2004” (PDF). U.S. General Accounting Office. https://www.gao.gov/assets/gao-04-353r.pdf; https://www.gao.gov/assets/ogc-97-16.pdf.
6 See Eric Holder, Memorandum on the Implementation of United States v. Windsor, available at https://s3.documentcloud.org/documents/23307308/holder-memo-windsor.pdf, p2; see also https://www.justice.gov/iso/opa/resources/9201421014257314255.pdf.
7 This requirement is not in the text of the Internal Revenue Code. The IRS adopted the concept from common law, based on the agency’s understanding of the legislative intent behind the federal tax-exemption statute.
9 Kristen Waggoner, “A Friend’s Response to David French on the Respect for Marriage Act,” December 1, 2022. World Magazine. Available at https://wng.org/opinions/a-friends-response-to-david-french-on-the-respect-for-marriage-act-1669898899.
10 See Hunter v. U.S. Department of Education. See also Tax-Exempt Status and Title IX: Recent Litigation Developments and Billard v. Diocese of Charlotte, discussing Title IV religious exemptions.
11 Stern, Progressive Critics Are Wrong, supra note 2; Gregory S. Baylor, What You Should Know about the Respect for Marriage Act, ADF, Nov. 22, 2022, https://adflegal.org/article/what-you-should-know-about-respect-marriage-act (concluding “[T]he new section simply states that those Americans whose beliefs are infringed can invoke already existing legal protections, like the First Amendment and the Religious Freedom Restoration Act (RFRA)…Those targeted under the bill will be forced to spend years in litigation and thousands of dollars in attorneys’ fees to protect their rights.”); Rep. Chip Roy and Ryan Anderson, Defending marriage: Will Senate Republicans display courage and uphold truth?, Fox News, Nov. 21, 2022, https://www.foxnews.com/opinion/defending-marriage-will-senate-republicans-display-courage-uphold-truth; Roger Severino, Answering the Critics of the Critics of the Respect for Marriage Act, The Heritage Foundation, https://thf_media.s3.amazonaws.com/2022/Answering_Critics_of_Critics_of_Respect_for_Marriage_Act.pdf.
12 H.R. 8404, 117th Cong. § 6 (2022). The choice of language enumerating specific exempt religious nonprofits, rather than a general exemption for religious nonprofits, is concerning. Under canons of construction, such as ejusdem generis, noscitur a sociis, and expressio unius, one could argue that the list is intentionally narrow, so as to exclude organizations with dual religious and humanitarian purposes. See William N. Eskridge, Jr., Philip P. Frickey, “The Rehnquist Court’s Canons of Statutory Construction,” National Conference of State Legislatures (Sep. 2005), https://www.ncsl.org/documents/lsss/2013pds/rehnquist_court_canons_citations.pdf.
13See Roy and Anderson, Defending Marriage, supra note 11.
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