Sen. Mike Lee, (R) of Utah, announced at a press event on Wednesday that he will be introducing legislation in defense of religious institutions that oppose same-sex marriage.
This announcement comes between March's passage by the Utah State Legislature of the Utah compromise – a bill, backed by Utah's Church of Jesus Christ of Latter Day Saints, that protects members of the LGBT community from employment and housing discrimination while at the same time exempting religious institutions that oppose same-sex marriage – and the upcoming decision in the Supreme Court same-sex marriage case Obergefell v. Hodges.
It is Senator Lee’s second attempt at legislation to ban federal consequences for those who oppose same-sex marriage on the basis of religion; the bill is expected to be an iteration of the Marriage and Religious Freedom Act, which he sponsored in December 2013, but which did not advance.
The impetus for the bill’s revival comes at least in part from a comment made by Solicitor General Donald Verrilli when he argued in favor of marriage rights for same-sex couples in the April 28 oral arguments for Obergefell v. Hodges at the Supreme Court.
During the oral arguments, Justice Samuel Alito asked Mr. Verrilli if colleges and universities opposed to same-sex marriage would lose their tax-exempt status in keeping with the 1983 Bob Jones University v. United States case, in which the Supreme Court ruled that a university's tax-exempt status could be revoked for racial discrimination. Verrilli responded, “You know, I – I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I – I don't deny that. I don't deny that, Justice Alito. It is – it is going to be an issue.” Lee says he found the comment “troubling.”
Though Verrilli’s answer may have been intentionally vague, Lee and many like-minded supporters of religious institutions saw its implications as anything but: Samuel Oliver, president of the Tennessee Baptist Convention-affiliated Union University in Jackson, Tenn., was present at Lee’s Wednesday announcement and expressed concern that, without tax-exempt status, many religious schools could be forced to close. For Mr. Oliver, this would be a catastrophic disservice to students.
“To force students by default to attend secular schools is a form of mind control,” he said.
Equality Utah executive director Troy Williams, however, said fears like this are unfounded, since the First Amendment already protects the free exercise of religion. Mr. Williams called Lee’s bill “dangerous” and said it undermined the principles of the Utah Compromise.
“We worked together to find legislation that would protect everyone and harm no one. That’s what was unique about what we accomplished here in Utah,” Williams said. “It’s disappointing to see Senator Lee walk down this path when the model for how we can work together has been so clearly established.”
Lee’s pending act would also address another issue the Supreme Court has yet to rule on explicitly: whether or not institutions that provide wedding services – such as bakers, photographers, and florists – would be bound by law to offer their services to same-sex couples, regardless of their own religious beliefs.
“The government ought to not only promise that it is not going to force any church to perform a same-sex marriage against its own teachings,” Lee told Deseret News, “but we ought to have a guarantee by the government to the American people … that the government won’t penalize any religious institution or any religious individual – based on a religious belief – [for the belief that] marriage is an institution between a man and a woman. That’s why I wrote this legislation.”
Williams said he did not believe churches would be forced to marry same-sex couples, but that Lee's bill was problematic because it could be applied too broadly.
“LGBT Americans support the Constitution’s protections for religious liberties. No church should be required to perform a marriage ceremony for anyone and no priest should be penalized for refusing to marry anyone,” he said. “Senator Lee’s bill is dangerous because it goes further than that. It applies to corporations as well as churches. Essentially, under Lee’s bill, a company could potentially put up a sign that says ‘no gays allowed,’ and raise religious liberty as an excuse to discriminate against LGBT Americans.”