Religious Freedom and the Respect for Marriage Act
The proposed Respect for Marriage Act (RMA) would repeal the 1996 Defense of Marriage Act (DOMA). It would also provide for both federal and interstate recognition of same-sex marriages validly entered in a state. The RMA passed the House with 47 Republican votes and awaits action in the Senate, where it will need at least ten Republican votes to survive a filibuster.
My co-blogger Ilya Somin has already addressed some of the interesting federalism aspects of the bill. I want to address here a particular religious-liberty dimension of the bill: its silence about the Religious Freedom Restoration Act (RFRA).
Members of Congress concerned about the effects of federal law on religious liberty, and about the myriad unanticipated ways legislation may burden religious exercise, have long been reassured by knowing that RFRA (42 U.S.C. 2000bb et seq.) provides a statutory floor of protection. As explained below, RMA is subject to RFRA’s statutory protections for religious liberty, unlike other prominent civil rights proposals under consideration in the Senate.
RFRA provides: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless it demonstrates that application of the burden “furthers a compelling governmental interest” and is the “least restrictive means of furthering that compelling governmental interest.” §2000bb–1.
RFRA applies by its terms to “all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.
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