Gay marriage legislation is dividing the Conservatives ahead of a vote next week

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A rainbow flag flies as the Supreme Court is seen in the background.

The Supreme Court in 2017 when a gay rights case was heard. (Brendan Smialowski/AFP via Getty Images)

There is a distinct difference in how groups on the left and the right are reacting to a bill that supporters say would improve protections for both gay rights and religious freedom.

The Senate has moved forward law on respect for marriage (RFMA) passed a key hurdle and overcome the filibuster by 62 votes last week, including from 12 Republicans. The legislation is expected to receive a final vote next week.

There is some complaints on the left about the bill from votes with a large audience on social media. But by and large, the major LGBTQ advocacy groups are backing the bill.

And even among those who have criticized the RFMA, there is general agreement that they want the legislation to become law.

I hate the Senate bill and we need to pass it,” wrote Charlotte Clymer, a transgender writer who worked for the Human Rights Campaign, one of the nation’s largest gay rights organizations.

Clymer argued that the bill does not “codify” same-sex marriage, but noted that it would protect the marriage licenses of gay couples married now if the U.S. Supreme Court ever overturns the 2015 decision that legalized same-sex unions, Obergefell v. Hodges.

Charlotte Clymer stands on a podium during an event.

Charlotte Clymer speaks at a rally to support transgender troops in 2019 in Washington. (Joy Asico/AP Images for Human Rights Campaign)

And, Clymer said, full federal recognition by Congress of same-sex marriage is not likely any time soon, as long as 60 votes are required to send anything under the filibuster.

But on the right, statements from legislation is divided. There is a coalition of religious groups that support the bill, or that support the religious freedom provisions and want the bill to pass despite their belief that their faith does not allow them to support gay marriage.

This group includes National Association of Evangelicals, The Church of Jesus Christ of Latter-day Saints, Union of Orthodox Jewish Congregations of America, Seventh-day Adventist Church, Council for Christian Colleges and Universities, And Campaign and 1st Amendment Partnership.

Many of these groups “think like religious minorities,” said Tim Schultz, president of the 1st Amendment Partnership, a religious freedom advocacy group. “So it is not surprising that they seek pluralistic solutions to their challenges.

“A lot of other people don’t think that way,” Schultz said in an interview about “The Long Game,” a Yahoo News podcast. “They don’t think of themselves as a religious minority, and they carry themselves in the public square very differently in ways that I think are actually part of the reason they achieve minority status.”

And there actually is vociferous opposition to the marriage legislation from a number of prominent social conservatives, and the opposition of many is absolute. This group includes the United States Conference of Catholic Bishops, Franklin Graham of Samaritan’s Purse and the Billy Graham Evangelistic Association, Al Mohler from Southern Baptist Theological Seminary, Ryan T. Anderson at the Center for Ethics and Public Policy, the Missouri Baptist Convention and other figures who work for institutions such as the heritage fund, Alliance that defends freedom and World magazine, an evangelical publication.

Anderson outlined the absolutist case against the Senate bill last week.

A protester outside the Supreme Court holds an umbrella that reads: Repent America.

A protester outside the Supreme Court in 2017. (Brendan Smialowski/AFP via Getty Images)

“Marriage is a natural and supernatural institution before it is a political institution. Human law should reflect natural law and eternal law. No senator should vote to allow the government to redefine what marriage is.” Anderson tweeted.

When Anderson was asked on Twitter if he would support a bill with even more expansive protection for religious freedom along the lines of an amendment proposed by Sen. Mike Lee, R-Utah, he said he wouldn’tthough he favored the Lee Amendment, saying it offered “meaningful protections for religious liberty.”

Critics of Lee say he has done little to work constructively toward a compromise on these issues. Lee spokesman Lee Lonsberry told Yahoo News that the senator “repeatedly tried to engage everyone involved in negotiations” on the marriage bill, but did not answer a question about what form those attempts took or when he made them.

“His proposed amendment to the Respect for Marriage Act has been developed over a long period of time and with input from a wide range of religious organizations and individuals,” Lonsberry said.

Schultz said the intent of the RFMA is to reassure both sides that their worst fears will not be realized by creating protections for each.

Schultz, like many on the right, doesn’t think it’s likely at all that the Supreme Court would overturn Obergefell. He sees Justice Clarence Thomas’ opinion in the Dobbs decision that overturned Roe v. Wade — in which Thomas raised the possibility of doing away with same-sex marriage — as an aberration.

“But I guess I would say this: For people who are concerned [Obergefell being overturned]we should have good faith and try to make sure they understand that the marriages that have been legally entered into will not be annulled,” Schultz said.

Republican Senator Mike Lee of Utah holds up the constitution in his pocket.

Utah Republican Sen. Mike Lee at an election night party Nov. 8 in Salt Lake City. (Rick Bowmer/AP)

The RFMA ensures that if Obergefell were overturned, marriage licenses would still be valid and states that have legalized same-sex marriage would still be able to issue licenses in the future. Furthermore, these licenses must be recognized in states where same-sex marriage is not legal.

“And I think it’s the same spirit that I appreciate that supporters of same-sex marriage have said, ‘Oh, you’re [meaning religious organizations] Worried about losing your tax-exempt status? We think it’s unlikely, but guess what, we’re going to say we’re not going to do it,” Schultz said.

“So some of this is really saying to each other, ‘I think the risk of what you’re worried about is pretty low, but how about we make sure you don’t have to worry about it at all that?” told Yahoo News.

Conservative author David French wrote that each page have a moment in the last few years that “haunts” them. For conservatives, then-President Barack Obama’s lawyer, Donald Verrilli, said in oral arguments in 2015 that a college that opposed same-sex marriage could be treated by the federal government the same as The IRS stripped Bob Jones University of its tax-exempt status to oppose interracial marriage and dating. For liberals, it’s Thomas’ opinion of overturning Obergefell.

Some to the right argue as RFMA does make it more likely that religious organizations can lose their tax-exempt status if they refuse to hire a gay person or can lose grants or accreditation if they choose not to open up adoptions to e.g. homosexual couples.

Jim Obergefell holds a picture of his late husband, John Arthur, as he speaks to members of the media outside the Supreme Court.

Plaintiff Jim Obergefell holds a photo of his late husband, John Arthur, after the Supreme Court ruled on same-sex marriage on June 26, 2015. (Alex Wong/Getty Images)

But that claim is to “disregard the text of the law,” according to a group of conservative legal scholars led by Douglas Laycock, a law professor at the University of Virginia who has successfully argued significant religious freedom cases at the US Supreme Court in recent years.

Laycock and three other constitutional scholars said the RFMA “is a good and important step for the freedom of believers to follow their traditional views on marriage.”

“Its protection of religious freedom, while not comprehensive, is important, especially in the context where [RFMA] occurs,” Laycock and the other experts wrote.

The Laycock letter also noted that both gay rights and religious freedom advocates have failed to advance their cases when they have refused to compromise.

The legal researchers noticed that Lee’s 2015 efforts to pass a more expansive religious freedom bill, the First Amendment Defense Act, failed to get 60 votes in the Senate despite Republicans controlling both houses of Congress. The bill would have protected organizations opposed to same-sex marriage or homosexuality in general from “discriminatory action” by the federal government, among other provisions.

Laycock and his colleagues say Lee’s 2015 bill failed because it did not include protections for LGBTQ people.

“LGBTQ rights advocates have failed to secure their goals in Congress through the Equality Act or in many state legislatures because they have been unwilling to provide for religious freedom,” the conservative legal scholars wrote. “The lesson also applies to conservatives. Efforts like the First Amendment Defense Act (FADA) have similarly failed repeatedly because they failed to recognize LGBTQ rights, even in an incremental way.”

Senator Mike Lee speaks during a hearing on Capitol Hill.

Lee at a committee hearing in 2016. (Mark Wilson/Getty Images)

“Religious freedom has been caught in the crossfire of warring groups unwilling to accept the slightest gain for the other side. And religious freedom has suffered as a result,” they wrote. “This bill offers a chance to address these trends and introduce religious freedom protections in a bipartisan measure.”

Matthew Lee Anderson, founder of the conservative Mere Orthodoxy website, wrote it “These are by no means the only religious freedom protections we need.”

“Yet the gains here are not insignificant either,” he added. “What is lost is — well, the answer to that depends on how realistic it is to think that Obergefell will be toppled within the next 10 years.

“I think I understand why the religious right is opposed to the RFMA. What I don’t understand is regarding it political judgment as so obvious that any conservative who supports it has somehow departed from conservatism, much less Christian orthodoxy,” he concluded.

Front page thumbnail photo illustration: Yahoo News; photo: Jacquelyn Martin/AP

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