Sixty members of the U.S. House of Representatives (58 Republicans and 2 Democrats) have introduced legislation, the “Marriage and Religious Freedom Act” (MARFA), that would prohibit any “adverse action” by the federal government against any “person” who acts on the basis of a religious belief opposing same-sex marriage or opposing sexual relations outside of opposite-sex marriages. “Adverse actions” include action by the IRS to strip a group of favorable tax treatment, like tax-exempt status. But it also includes actions related to employment, accreditation, grants, contracts, or benefits otherwise available under federal law. And it broadly prohibits “discrimination” against those who oppose same-sex marriage and non-marital sex. “Person” includes nonprofit and for-profit corporations, companies, associations, firms, partnerships, societies, and joint stock companies.
MARFA raises very interesting questions of statutory construction, public policy, antidiscrimination law, and potential applications and burdens for married same-sex couples. It also raises potential Establishment Clause issues in its partiality toward certain religious doctrines (i.e., applying only to those who oppose, rather than favor, same-sex marriage for religious reasons). After United States v. Windsor, there are also potential Equal Protection problems in MARFA’s targeted protection of acts motivated by opposition to same-sex marriage. I haven’t looked at the proposal in detail, but my preliminary reaction is that parts of MARFA (especially those constraining the IRS) will be politically popular, and that other parts may be seen as overreaching. Whether there is an actual need for any of it, politically popular or not, is an additional question, and whether its protections justify the burdens it may place on married couples is yet another. When I’ve had a chance to look at it more closely, I may offer more detailed thoughts.
I have a copy of the legislation and will post a link as an update when available.
UPDATE: The text of the bill is available here.