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Floor Speech

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Mr. PORTMAN. Madam President, I come to the floor today in support of the Respect for Marriage Act. I want to summarize my remarks, though, and ask unanimous consent that my full remarks be printed in today's Record.

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Mr. PORTMAN. The Supreme Court declared same-sex marriage as a constitutional right way back in 2015, and the overwhelming majority of Americans support that group. According to Gallup, over 70 percent of Americans believe same-sex marriage should be recognized as valid under law, including a majority of Republicans.

Despite this strong support, the U.S. Code does not reflect that consensus in America. Current legislation allows States and the Federal Government to refuse to recognize valid same-sex marriages. While it is true the Supreme Court has held this law is not enforceable, it still represents Congress's last word on the subject. The American people rightly expect their elected representatives to bring our laws in line with their beliefs. That is part of what this legislation does.

It is time for the Senate to settle the issue. The Respect for Marriage Act, which passed the House with overwhelming partisanship support, including the support of 46 Republicans on the House side, simply allows interracial or same-sex couples who are validly married under the laws of one State to know that their marriage will be recognized by the Federal Government and other States if they move. This is all in accordance with well-established Supreme Court precedence.

Settling this issue is well within the constitutional authority of us here in Congress. After all, the full faith and credit clause is part of our Constitution.

Since the bipartisan passage of this bill by the House of Representatives earlier this year, in response to concerns over religious liberty, this already narrow bill has been significantly amended in the Senate to include robust religious liberty protections. By working collaboratively on a bipartisan basis with religious liberty scholars; faith organizations; Senate colleagues, including some I see on the floor here today; and other stakeholders, we have developed a substitute amendment that contains important protections for people of faith. It has five key changes to the underlying bill.

Remember, this is a bill that already passed the House with 46 Republican supporters, but these are religious liberty provisions that we have added to it.

First, it has an express acknowledgement that decent and honorable people hold diverse views about the role of gender and marriage and that such people and their beliefs are due respect. This is an important statement that has implications that protect religious liberty.

Second, it explicitly protects all existing religious liberty and conscience protections under the First Amendment and Federal laws including the powerful protections provided by the Religious Freedom Restoration Act.

Third, it guarantees that this bill cannot be used to target or deny benefits, including tax-exempt status, grants, contracts, educational funding, licenses, accreditation, certification, and many others because a person or organization holds a traditional belief about marriage. This protects everything from the tax status of religious nonprofits to the accreditation of religious schools, to the contracts between faith-based adoption providers and the government from being attacked using this bill.

Fourth, it ensures that nonprofit religious organizations, including churches, mosques, synagogues, religious schools, and others cannot be required to provide facilities, goods, or services for marriage ceremonies or celebrations against their will.

Fifth, it has an explicit prohibition on the recognition of polygamous marriages.

These religious liberty provisions are significant and they are meaningful and they have earned the endorsement of important faith groups. In a joint letter to the Senate, eight different faith-based organizations, including the Church of Jesus Christ of Latter-day Saints, also known as the Mormon Church; the Seventh-Day Adventist Church; the Union of Orthodox Jewish Congregations of America; the Council for Christian Colleges & Universities; the Center for Public Justice; the AND Campaign; the Institutional Religious Freedom Alliance; and the 1st Amendment Partnership--all of them concluded that our religious liberty amendments ``[protect] the core religious freedom concerns raised by the bill, including tax exempt status, educational funding, government grants and contracts, and eligibility for licenses, certification and accreditation.'' And they said: ``If passed, it would continue to build on the congressional wisdom represented by the Religious Freedom Restoration Act of 1993.'' So that is what these religious groups--that is what they say about it. They helped write the language.

A group of leading religious liberty scholars and advocates for religious liberty have analyzed the bill, and they have reached the same conclusion. These scholars include, by the way, Professor Doug Laycock, who argued on behalf of faith groups and won two foundational religious liberty cases before the U.S. Supreme Court. On balance, a group of these distinguished professors determined that this bill is an ``advance for religious liberty'' because, as they say, the ``protections are important.''

Notwithstanding these important protections and the opinion of leading experts in the field, the critics of this bill continue to level accusations about what this bill does that are simply not accurate.

First, some critics claim this bill provides grounds for the IRS or other government bodies to revoke the tax-exempt status or other benefits from religious organizations that adhere to traditional views on marriage. This couldn't be further from the truth. Section 7(a) of our amendment actually expressly forbids the outcome that these critics are warning of. It prohibits the use of the bill to target the tax- exempt status, certification, accreditation, grant, funding, loan, license, or any other nonmarital status, right, or benefit of religious organizations. To quote Professor Laycock's analysis:

Those who claim that the bill would be used as a ground for denying tax-exempt status to organizations adhering to male- female marriage, by analogy to Bob Jones, are disregarding the statutory text.

In addition to the statutory prohibition, this amendment contains a clear statement from Congress, again, that diverse beliefs about the role of gender in marriage, including the belief that marriage is between one man and one woman, come from decent and honorable premises and are due respect. This congressional statement distinguishes the belief that marriage should be between a man and a woman from the belief that interracial marriage is wrong. This distinction is important, and rather than portraying those who believe in traditional marriage as bigots, reflects a national policy that respects diverse beliefs about the role of gender in marriage, while also protecting the rights of same-sex married couples, and that is the key.

Second, some critics argue that this bill will lead to more litigation between ``institutions and individuals trying to live according to their sincerely held religious beliefs.'' This is also false. The bill only governs the conduct of State actors and contains no litigation tools that would be used against private religious entities acting in a private capacity, even the ones that receive the majority of their funding from the State. To quote, again, from Professor Laycock's analysis, the Respect for Marriage Act and our bipartisan substitute amendment ``poses little or no new risk to religious liberty beyond those that already exist.''

Third, some critics continue to make the bewildering argument that this bill will lead to legalized and recognized polygamy. Again, this has no grounding in reality. No State allows bigamy or polygamy, and this bill does not change this. Moreover, our amendment explicitly says now:

Nothing in this Act, or any amendment made by this Act, shall be construed to require or authorize Federal recognition of marriages between more than 2 individuals.

Finally, some critics argue this bill is deficient because it does not contain new enforceable rights for private businesses and other entities beyond the scope of this bill. This bill, as legal scholars and many faith groups agree, poses no new risks to religious organizations, while containing significant benefits and protections for people of faith.

Of course, this bill does not cover or address every lawsuit or dispute that may arise between LGBTQ and religious interests, but it does address the disputes that could arise because of this bill.

In conclusion, I urge my colleagues to look carefully at the new religious liberty provisions. Take a look at it. I hope you will be able to support the Respect for Marriage Act. The substitute amendment is a carefully negotiated, well-crafted piece of legislation that protects people of faith as well as same-sex married couples. A statement in a recent letter from the Council for Christian Colleges & Universities accurately states that our amendment ``sends a strong bipartisan message to Congress, the Administration, and the public that LGBTQ rights can co-exist with religious freedom protections, and that the rights of both groups can be advanced in a way that is prudent and practical.''

I think that is the major point here. They can coexist. That is what our legislation proves. That is why it deserves the support, in my view, of our colleagues.

So I urge them to join me in taking this path forward to pass this bill with the same overwhelming bipartisan support we saw in the House of Representatives. The American people want us to settle this issue and millions of American couples who are married, including many in Ohio, are counting on us to recognize and protect their marriage and give them the peace of mind that they deserve.

Madam President, I come to the floor today in support of the Respect for Marriage Act. I hope the Senate will pass this important legislation today.

The Supreme Court declared that same-sex marriage is a constitutional right in 2015 and the overwhelming majority of Americans support this view. According to Gallup, over 70 percent of Americans believe that same-sex marriage should be recognized as valid by the law, including a majority of Republicans.

Despite this vast support, the U.S. Code does not reflect the American consensus. Current legislation allows States and the Federal Government to refuse to recognize valid same-sex marriages. While it is true that the Supreme Court has held that this law is not enforceable, it still represents Congress's last word on the subject. The American people rightly expect their elected representatives to bring our laws in line with their beliefs.

It is time for the Senate to settle the issue. The Respect for Marriage Act, which passed the House with overwhelming bipartisan support, simply allows interracial or same-sex couples who were validly married under the laws of one State, to know their marriage will be recognized by the Federal Government and by other States if they move in accordance with established Supreme Court precedent.

This short, narrow bill has two main effects, both of which are well within the constitutional authority of Congress.

First, it ensures that marriages legally performed in one State are recognized as valid in other States, regardless of sex or race. This is a straightforward application of the full faith and credit clause of the Constitution.

Under this clause, States are required to recognize things like court judgments and public records from other States. This bill will simply clarify that marriage is one of the things that must be recognized across State lines.

Second, this bill specifies that the Federal Government will recognize a marriage that is valid in the State where it was performed. This portion of the bill keeps the Federal Government out of the business of defining marriage and leaves that decision to the States, where it properly belongs.

As you can see, this bill is extremely narrow, it is constitutional, and it does not infringe on State sovereignty. This is a bill that simply ensures, as a matter of statutory law, that interracial and same-sex marriages that were legal in the State they were performed will be recognized if the couple moves to a different State.

In response to concerns over religious liberty, since the bipartisan passage by the House of Representatives earlier this year, this already narrow bill has been significantly amended in the Senate to include robust religious liberty protections. By working collaboratively on a bipartisan basis with religious liberty scholars, faith organizations, colleagues, and other stakeholders, we have developed a substitute amendment that contains important protections for people of faith. This amendment contains five key changes to the underlying bill.

First, it contains an express acknowledgment that decent and honorable people hold diverse views about the role of gender in marriage and that such people and their beliefs are due respect.

Second, it explicitly protects all existing religious liberty and conscience protections under the First Amendment and Federal laws, including the powerful protections provided by the Religious Freedom Restoration Act.

Third, it guarantees that this bill cannot be used to target or deny benefits--including tax-exempt status, grants, contracts, educational funding, licenses, accreditation, certification, and many others-- because a person or organization holds a traditional belief about marriage. This protects everything from the tax status of religious nonprofits, to the accreditation of religious schools, to the contracts between faith-based adoption providers and governments from being attacked using this bill.

Fourth, it ensures that nonprofit religious organizations, including churches, mosques, synagogues, religious schools, and others cannot be required to provide facilities, goods, or services for marriage ceremonies or celebrations against their will.

Fifth, it contains an explicit prohibition on the recognition of polygamous marriages.

These religious liberty provisions are significant, they are meaningful, and they have earned the endorsement of important faith groups that hold to an understanding that marriage is between one man and one woman. In a joint letter to the Senate, eight different faith- based organizations--including the Church of Jesus Christ of Latter-day Saints, otherwise known as the Mormon Church; the Seventh-Day Adventist Church; the Union of Orthodox Jewish Congregations of America; the Council for Christian Colleges & Universities; the Center for Public Justice; the AND Campaign; the Institutional Religious Freedom Alliance; and the 1st Amendment Partnership--concluded that the religious liberty amendment ``protects the core religious freedom concerns raised by the bill, including tax exempt status, educational funding, government grants and contracts, and eligibility for licenses, certification, and accreditation'' and that, ``if passed, it would continue to build on the congressional wisdom represented by the Religious Freedom Restoration Act of 1993.''

This view is not limited to faith groups. A group of leading religious liberty scholars have analyzed the bill and reached the same conclusion. These scholars include Professor Doug Laycock, who argued and won two foundational religious liberty cases before the Supreme Court. He argued on behalf of faith groups in the case Church of Lukumi Babalu Aye, the premier case on unconstitutional religious targeting, and Hosanna-Tabor, the leading case on the hiring rights of religious organizations. He won both unanimously.

Professor Laycock was joined by Professor Thomas Berg, Professor Carl Esbeck, and Professor Robin Fretwell Wilson in his analysis of the bill. Professor Berg has advocated for religious liberty in briefings before the Supreme Court, including in Fulton v. City of Philadelphia to defend the rights of faith-based adoption agencies. Professors Esbeck and Wilson have themselves authored briefs and influential texts on religious liberty. On balance, these distinguished professors determined that this bill is an ``advance for religious liberty'' because the ``protections are important and [] any new risks it creates are quite limited.''

Notwithstanding these important protections and the opinion of leading experts on the issues, the critics of this bill continue to level incorrect accusations about what this bill does. I want to take a moment to respond to three arguments that opponents have made.

First, some critics claim that this bill provides grounds for the IRS or other government bodies to revoke the tax-exempt status or other benefits from religious organizations that adhere to traditional views on marriage. This couldn't be more wrong. Section 7(a) of the amendment expressly forbids the outcomes that the critics are warning of. It prohibits the use of this bill to target the tax-exempt status, certification, accreditation, grant, funding, loan, license or any other nonmarital status, right, or benefit of religious organizations. To quote Professor Laycock's analysis: ``Those who claim that the bill would be used as a ground for denying tax-exempt status to organizations adhering to male-female marriage, by analogy to Bob Jones, are disregarding the statutory text.''

In addition to this statutory prohibition, this amendment contains a clear statement from Congress that diverse beliefs about the role of gender in marriage--including the belief that marriage is between one man and one woman--come from decent and honorable premises and are due respect. This congressional statement distinguishes the belief that marriage should be between a man and a woman from the belief that interracial marriage is wrong. This distinction is important, and rather than portraying those who believe in traditional marriage as bigots, reflects a national policy that respects diverse beliefs about the role of gender in marriage, while also protecting the rights of same-sex married couples.

Second, some critics argue that this bill will lead to more litigation against ``institutions and individuals trying to live according to their sincerely held religious beliefs.'' This is also false. This bill only governs the conduct of State actors and contains no new litigation tools that could be used against private religious entities acting in a private capacity, even ones receiving the majority of their funding from the State. To quote again from Professor Laycock's analysis, the Respect for Marriage Act and our bipartisan substitute amendment ``poses little or no new risk to religious liberty beyond those that already exist.''

Third, some critics continue to make the bewildering argument that this bill could lead to legalized and recognized polygamy. This has no grounding in reality. No State allows bigamy or polygamy, and this bill does nothing to change this. Moreover, our amendment explicitly says that ``Nothing in this Act, or any amendment made by this Act, shall be construed to require or authorize Federal recognition of marriages between more than 2 individuals.'' No court would entertain the fanciful arguments suggested by critics that a man married to multiple women is somehow not engaged in polygamous marriage.

Finally, some critics argue that this bill is deficient because it does not contain new enforceable rights for private business or other entities that apply beyond the scope of this bill. This is not a fair criticism. This bill--as legal scholars and many faith groups agree-- poses no new risks to religious organizations, while containing significant benefits and protections for people of faith. Of course, this bill does not cover or address every lawsuit or dispute that may arise between LGBT and religious interests, but it does address the disputes that could arise because of the bill.

Having addressed these erroneous arguments and criticisms, I also want to take a moment to address the three amendments that we will vote on today. None of the amendments that we are voting on solve perceived problems created by this bill. As I just described, this bill is narrow, it provides no new risks to religious organizations, and it contains important protections for people of faith.

Senator Lee's amendment provides new affirmative rights that allow people to sue the government--including lawsuits for money damages--if the government discriminates against their beliefs about marriage in any number of ways. Now, because of the significant protections and prohibitions that we have added, none of the discrimination contemplated by Senator Lee could occur because of the Respect for Marriage Act. In other words, this new right proposed by the Lee amendment goes far beyond the scope of the bill before us and seeks to address harms and resolve disputes that are not created by the Respect for Marriage Act. Although I disagree with Senator Lee that his amendment solves any potential problem created by the Respect for Marriage Act, I support the overall goal of providing a defense to discrimination in other contexts. I, therefore, will vote in favor of this amendment.

Senator Lankford and Senator Rubio have proposed separate amendments, both which remove the private right of action from this bill. I do not support this change. It does not fix any alleged problem created by this bill or improve it in any way. A private right of action is a common way for Congress to allow Americans to enforce their statutory rights. It simply allows someone to go to court and to receive a judgment if they have been harmed. To illustrate just how common it is, Senator Lee's amendment that I just discussed--and will support--also provides a cause of action.

There is no reason to strip the private right of action from this bill because it is extremely narrow and cannot be used against anyone acting in a private capacity. It also cannot be used to obtain money damages. This provision simply allows someone to get a court order requiring a State actor to recognize their valid marriage. Contrary to the claims of some critics, it absolutely does not allow lawsuits against private parties simply because they contract or receive funding from the government.

The right of action is a necessary enforcement mechanism for this bill and removing it could leave those who have their rights under this law violated without a remedy. In other words, it undermines the very purpose of this bill. I will not support the Lankford or Rubio amendments for this reason.

In conclusion, I urge my colleagues to look carefully at the new religious liberty provisions and to support the Respect for Marriage Act. The substitute amendment is a carefully negotiated, well-crafted piece of legislation that protects people of faith as well as same-sex married couples. A statement in a recent letter from the Council for Christian Colleges and Universities captures my views precisely, and so I will directly quote from it: This amendment ``sends a strong bipartisan message to Congress, the Administration, and the public that LGBTQ rights can co-exist with religious freedom protections, and that the rights of both groups can be advanced in a way that is prudent and practical.''

I urge my colleagues to join me in taking this path forward and to pass this bill with the same overwhelming bipartisan support that we saw in the House of Representatives. The American people want us to settle this issue once and for all. Millions of American married couples, including many in Ohio, are counting on us to recognize and protect their marriage to give them the peace of mind they deserve. We shouldn't let them down.

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