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Actually protecting religious freedom after the Supreme Court’s DOMA decision

After the US Supreme Court struck down a part of the federal Defense of Marriage Act last summer, easing the way for same-sex marriage to be adopted more widely across the nation, President Obama said this:

“On an issue as sensitive as this, knowing that Americans hold a wide range of views based on deeply held beliefs, maintaining our nation’s commitment to religious freedom is also vital. How religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decision–which applies only to civil marriages–changes that.”

Yet there is every reason to be sure that, absent careful and vigorous counteractive measures, the spread of marriage redefinition exactly will limit the religious freedom of religious organizations and persons. (For a thorough exploration of the predictable conflicts and (partial) solutions, see this indispensable book: Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson, eds., Same-Sex Marriage and Religious Liberty: Emerging Conflicts(Rowman and Littlefield, 2008).)

Last week a bipartisan group in the House of Representatives proposed an important federal counteractive measure, H.R. 3133, the Marriage and Religious Freedom Act, intended to prevent negative treatment of persons and organizations by the federal government because those persons and organizations hold to the traditional view of marriage. The bill has more than 69 co-sponsors, from both parties.

The bill would forbid federal retaliation because a religious organization, a business, or a person has a religious conviction that “marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.” The bill specifically forbids the federal government from taking the following punitive actions against such dissenters: denying an organization tax-exempt status, denying a tax deduction for a contribution to the organization, or stripping a dissenting organization or person of federal grants, contracts, benefits, loans, licenses, certification, accreditation, or employment.

Here’s a way to put real muscle into the President’s words. Will the administration back the bill? If not, why not? Will Congress? If not, why not?