There is a deep sense of urgency among the GOP elite in Washington to implement “an Obamacare fix” and place the Republican stamp of approval on subsidies in the event that the Supreme Court invalidates them in King v. Burwell. Unfortunately, but not surprisingly, there is no such urgency to implement a religious liberty fix in the event that the Court mandates a new civil right for homosexual couples.
However, if nothing is done to block the impeding onslaught of discrimination against private institutions that believe in marriage, their status will be in just as much jeopardy from Obergefell v. Hodges as the Obamacare subsidies are from King v. Burwell.
As I noted before the oral arguments in the marriage case, there is no constitutional right or rationale basis to support a decision forcing states to recognize same-sex relationships as marriages more than any other relationship. The only way the court can arrive at such a decision is by creating special rights for same-sex relationships on par with civil rights that were granted to African Americans in the ‘60s. This will necessarily preclude everyone, including religious institutions, from upholding their beliefs about marriage on their private property.
This point was illustrated by an appalling yet predictable admission from Solicitor General Donald Verrilli in response to a line of questioning by Chief Justice John Roberts and Justice Sam Alito during oral arguments in April. Roberts asked Verrilli if a religious school that has on-campus housing for married couples would be required to afford such housing to same-sex couples, given that the pro-gay marriage side wants the Court to invent a fundamental constitutional right. Verrilli refused to give a straight answer. Then when Alito followed up and asked him if private schools that oppose gay marriage would lose their tax-exempt status, he admitted, “it’s certainly going to be an issue. I don’t deny that.”
Obviously, there is no need to parse out Verrilli’s statement in order to understand that the Rainbow Jihad movement will not stop when they secure universal marriage licenses. Over the past few years, it has become clear that they will not stop until every citizen and private institution is forced to accommodate their lifestyle.
In comes Sen. Mike Lee (R-UT) with a bill to protect religious institutions from any discrimination or reprisal from the federal government in the event that a new constitutional right is invented. In the coming days, he plans to reintroduce his Marriage and Religious Liberty Act from last year with some additions. In addition to protecting religious institutions from “adverse action,” this bill prevents the federal government from denying tax-exempt status to charitable groups, invalidating employee benefit plans that fail to accommodate same-sex relationships, or discriminate against them in any contractual relationship with the government.
Sen. Ted Cruz (R-TX) has already introduced legislation to mitigate the damage of an impending ‘Roe v Wade-style’ ruling in the marriage case. The Protect Marriage from the Courts Act of 2015 would freeze any action implementing the court’s decision by stripping the federal courts from any jurisdiction over marriage. It also invokes Congress’ power to make exceptions to the appellate jurisdiction of the Supreme Court by making it clear that the judgment only applies to the parties in the current case and cannot be applied to other cases. This will allow states like Alabama to invoke their plenary power over marriage and withhold licenses for same-sex couples – without the federal courts attempting to use this case as precedent for invalidating further state actions.
In the event that the Supreme Court strikes down marriage as an institution in the coming weeks, there will be a stampede for the doors in Republican circles to wash their hands of defending marriage and religious liberty once and for all. Cruz and Lee are making it clear that the fight is just beginning. Where is Sen. Mitch McConnell? Will he join with them to bring these bills to the floor instead of focusing on growing government or rubber stamping Obama’s agenda? Will all the presidential candidates promise to continue the fight even after the Supreme Court’s decision and sign these bills into law?
This nation was originally founded as a haven for religious liberty. It was not founded for the purpose of universal health care subsidies. Shouldn’t Republicans exhibit the same zeal to protect marriage and religious liberty from the courts as they plan to do with Obamacare subsidies? (See “Cruz, Lee Move to Defend Marriage and Religious Liberty”, originally posted HERE)