Evangelicals should stop trying to legislate morality for the nation and tend to their own house
The First Amendment of the United States Constitutions opens with the words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Fourteenth Amendment of the United States Constitution says (among other things) “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
But what happens when the religious clause of the First Amendment and the citizenship clauses of the Fourteenth Amendment come into conflict, as in the case of same-sex marriage? Is it possible to uphold the civil rights of the LGBTQ community and still allow religious institutions to order their communities around traditional views of marriage without government interference or punishment? These are not easy questions to answer.
Congress, the Supreme Court, and state legislatures have tended to privilege the Fourteenth Amendment over the First Amendment but have appeased religious communities by offering exemptions. For example, in 1993 Congress passed the Religious Freedom Restoration Act affirming that “Governments should not substantially burden religious exercise without compelling justifications.” In 1994, Congress amended the American Indian Religious Freedom Act to allow for the “traditional use of peyote . . . for religious purposes. . . .” In 2014, the Supreme Court invoked the Religious Freedom Restoration Act when it decided that the arts and crafts store Hobby Lobby was exempt from the contraceptive mandate of the Affordable Care Act.
Last month Congress passed the Respect for Marriage Act. Joe Biden signed it into law on Tuesday. The bill codifies both the Supreme Court’s ruling in Loving v. Virginia (1967) legalizing interracial marriage and Obergefell v. Hodges (2015) legalizing same-sex marriage. The Democrat-controlled Congress felt the need to secure these rights after conservative Supreme Court justice Clarence Thomas, in his opinion in the Dobbs. V. Jackson abortion case, argued that the Court “should reconsider” the Obergefell decision.
The Respect for Marriage Act would not have passed the Senate without a religious exemption. A bipartisan group of senators led by Susan Collins (ME), Rob Portman (OH), Tom Tillis (NC), Tammy Baldwin (WI), and Krysten Sinema (AZ) negotiated provisions in the act that addressed religious liberty concerns. The bill Joe Biden signed on Tuesday protects same-sex and interracial marriage, but it also states, invoking the religious freedom clause of the First Amendment, that religious institutions such as churches, synagogues, mosques, and religious educational institutions “shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of marriage.”
The religious exemption has been controversial. Writing in The Nation, Katherine Franke, a law professor at Columbia University, argues that the Respect for Marriage Act is a danger to civil rights. “Winning the right for same-sex couples to wed,” she writes, “has come at a very high price: signing up for a vision of the family, commitment, love, and care that domesticates our needs and desires into the traditional nuclear family.” Such a view of the family, she adds, “is anathema to the radical queer politics that sustained us before, throughout, and after the AIDS epidemic.” Evangelical “right-wing legal advocates,” Franke predicts, will use their victory to lobby for “including explicit and broad religious exemptions in almost any conceivable law.”
Franke may be correct. But I am not sure she fully understands just how divided the evangelical community is over the Respect for Marriage Act. Some of the “evangelical right-wing advocates” she references in her piece oppose the Respect for Marriage Act because it legalizes same-sex marriage. Period. Others oppose it because they believe the religious liberty clause to be too weak. They supported an exemption amendment from Utah Senator Mike Lee that would have protected the tax exempt status of institutions upholding a belief that marriage is between one man and one woman.
Albert Mohler, the president of The Southern Baptist Theological Seminary in Louisville, describes the religious exemption in the Respect for Marriage Act as “woefully inadequate.” He says the bill “dignifies” what is “prohibited in scripture” and suggests that somehow same-sex couples do not share in the same human dignity as those who embrace traditional marriage. In his response, Tony Perkins of the Family Research Council quoted Judges 21:25 (“In those days there was no king in Israel; everyone did what was right in his own eyes”), announced that the “(Dis)Respect for Marriage Act” is “a mockery of God’s word, and a danger to the nation,” and told his Twitter followers to “take action against” the Republicans who voted for the bill.” Evangelical pastor Jack Hibbs took to Twitter to call Joe Biden and the Democrats “decadent and reprobate” and remind them that “heaven is watching.”
At the heart of the criticism of the Respect for Marriage Act levied by the likes of Mohler, Perkins, and Hibbs is the idea that the United States was founded upon Christianity and should continue to privilege traditional views of marriage. This approach to history and its relationship to politics undergirds Mohler’s national conservatism and has been correctly defined by scholars as Christian nationalism. As conservative evangelical writer David French has noted, such views reject the civic pluralism on which the United States was founded, an outlook on democratic life that requires Americans to live together with deep differences.
Thankfully, not all evangelical Christians embrace the national conservatism of Mohler or the Christian nationalism of Perkins and Hibbs. The best evangelical responses to the Respect for Marriage Act stem from those affiliated—either officially or in spirit—with the National Association of Evangelicals (NAE), an eighty-year-old organization that represents forty Protestant denominations and thousands of churches, schools, and Christian nonprofit organizations. The NAE lobbied Senators for the religious exemptions included in the bill Biden signed into law.
In an effort to balance the First Amendment and the Fourteenth Amendment, these evangelicals concluded: “The NAE does not agree with the understanding of marriage expressed in this bill. But precisely because our beliefs are not shared by many of our fellow Americans, we welcome the additional protections that Congress provided in this bill for those who do not hold traditional beliefs about marriage.” The NAE’s official statement affirmed that “despite deep and significant disagreements, advocates of religious and LGBTQ rights can work together to reduce hostility between our communities” in a way that “opens new doors to respectful relationships and a more winsome gospel witness and ministry with all our neighbors.”
It is time that all evangelicals follow the NAE’s example. Or as Catholic intellectual E.J. Dionne recently suggested, America’s born-again Christians should take a hard look at their failures on the marriage and family front. These failures include the prevalence of divorce, adultery, and pornography and a general refusal to accept the limits placed on our lives by lifelong commitments and responsibilities. It’s time to stop trying to legislate evangelical morality for the rest of the nation and tend to our own house.
John Fea is Executive Editor of Current