As with so many other high-profile news items anymore, there are two fundamentally different stories being told about the “Respect for Marriage Act.”
Its proponents say it’s a defense of the status quo. They say you’ve got nothing to worry about unless you’re a bad person. But this line, of course, deliberately obscures the legal implications of what is now a legal reality.
The “Respect for Marriage Act” establishes a “private right of action” for violations of the act. It consciously extends the scope of the existing “Defense of Marriage Act” beyond state action and expands it to any person or entity “acting under color of law” — which could mean any entity receiving federal funding.
This isn’t just defense of the status quo, it’s an active — albeit indirect — extension of a legal regime that’s already broadly hostile to anyone subscribing to a traditional understanding of marriage. Of course, the Christian perspective on marriage is far from monolithic — but all Christians, of all persuasions, ought to consider the act’s legal implications carefully.
First, let’s explore what a “private right of action” is and how it functions. It empowers private entities to bring litigation against those they perceive to be infringing upon their rights — the “right,” in this case, to gay marriage. Normally, the infringement is alleged discrimination.
Most Christians in America are well aware of the many ways in which alleged discrimination can be and has been used to stifle speech and militate against differences of conscience. Take, for example, the string of bakery and photography cases or the long, ongoing battle to coerce Catholic institutions to provide contraceptives or abortions against their conscience.
It’s not a significant leap, legally or conceptually, to assume the generation of a new “private right of action” will entail a new, corresponding realm of implicitly state-condoned legal persecution. Of course, due to the act’s language, this must remain an assumption — for now.
Make no mistake, though: The “Respect for Marriage Act” is an offensive legal play, not a defensive one. Its two primary results will be an increased threat of litigation for those who dissent from the favored legal regime, as well as an overall chilling of free speech.
Expanding the realm of legitimate legal hostility is likely to just produce more legal hostility, not justice. And its expansion is likely to occur via many implicit or subtle measures like the “Respect for Marriage Act.”
So pay close attention to forthcoming legislation. Don’t stop reading at the headline. Don’t think that periodic votes are enough to protect your rights and liberties — because right now, they aren’t.
The “Respect for Marriage Act” isn’t unique. It isn’t the first bill with its most serious implications obscured, and it won’t be the last. One of the most important responsibilities of a free people is well-informed, good-faith participation in the democratic process — and that’s especially true when tensions run high.
So now, as always, we must rally around good leaders and speak out against unjust or duplicitous ones. Vote, organize, communicate, educate, learn.
The future of our democracy depends upon our ongoing and diligent civic involvement. It depends upon our prudence, our virtue, our hard work and our good will. Do your part to build a better future for all of us.
Timothy Head is the executive director of the Faith & Freedom Coalition.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.
