Respect for Marriage Act
How It Might Affect Nonprofit Christian Organizations

The Respect for Marriage Act ("RFMA") was signed into law in December 2022. This new legislation requires federal and state governments to recognize all marriages, regardless of sex, race, ethnicity, or national origin, assuming the marriage was valid in the state or country where it was performed. Some ministry leaders have wondered how the RFMA might affect them or their organizations as they carry out their mission.

What Does the Respect for Marriage Act Mean for Christian Organizations?

While RFMA does not provide any new religious freedom protections, it reinforces protections already established. The legislation explicitly states that nothing in the Act “shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.”

Notably, the bill:

• Does not regulate the right of private individuals to discriminate on religious grounds.
• Does not require the solemnization of marriage by religious nonprofits or their employees. This means churches and other nonprofit religious organizations will not be forced to administer or recognize same-sex marriages.
• Does not regulate religious schools or require religious institutions receiving federal funds to compromise their beliefs for the sake of funding.
• Does attempt to protect the tax-exempt status of religious entities. (Some experts fear it does not provide enough protection, but the concern is merely theoretical and appears an unlikely threat.)

On the other hand, the Act fails to provide explicit grounds for ministries to defend themselves against claims of discrimination. This may lead to more frequent litigation against private individuals and businesses. If sued, Christian organizations will need to rely on the protections provided by existing law and past case precedent, like the First Amendment of the U.S. Constitution and the Religious Freedom Restoration Act of 1993 (RFRA). Ultimately, courts are highly unlikely to use the RFMA to require private citizens, such as pastors, to recognize same-sex marriage or perform same-sex ceremonies.

The Act also fails to provide clear protection for religious social service organizations that work closely with the government, such as Christian adoption and foster agencies. Hypothetically, these social service agencies could be asked to operate in a manner that is inconsistent with their sincerely held beliefs to continue providing services. However, such a scenario would likely be contested in court.

How Is RFMA Different from Other Legislation and Supreme Court Precedent?

While the Supreme Court has already established that states must perform and recognize same-sex marriages in Obergefell v. Hodges (2015), RFMA redefines marriage under federal code and provides protections in the unlikely event that Obergefell would be overturned.

Some observers speculated that the final version of RFMA would codify the rights established in the Obergefell case, which requires states to issue marriage licenses to same-sex couples. However, that potential did not materialize.

RFMA also repeals the Defense of Marriage Act (1996), which created a federal definition of marriage as “a legal union between one man and one woman as husband and wife.” RFMA would replace this definition, stating that “an individual shall be considered married if that individual’s marriage is between two individuals and is valid in the state where the marriage was entered into” or “the place where entered into” (if the marriage took place outside of the United States).

The U.S. Attorney General can enforce RFMA by filing a lawsuit in U.S. District Court. The law also creates a private cause of action, allowing any person harmed by the violation of RFMA to file suit in U.S. District Court.

How Can Christian Organizations Prepare and Protect Themselves?

Update Governing and Organizational Documents
To prepare for potential challenges to belief-based decisions, religious institutions should document their sincerely held religious beliefs in writing. Leaders can then point to them if questioned. Below are some suggestions designed to accomplish this goal:

• Include a purpose statement in governing documents (i.e., bylaws and/or constitution) that outlines the organization’s foundational beliefs.
• Incorporate specific belief statements into governing and organizational documents.
• Include specific references to Scripture in support of sincerely held religious beliefs.

Although these steps may not offer absolute protection from liability, they can go a long way toward helping religious organizations strengthen their legal position in this area. For more, check out Brotherhood Mutual’s Religious Freedom Protection resource page.

Consider Adding Religious Freedom Protection Coverage
Due to changing religious, legal, and cultural trends, Christian organizations are encouraged to add religious freedom protection coverage to their property/liability insurance policy.

Brotherhood Mutual offers broad Religious Freedom Protection Coverage that provides innovative protection to religious institutions in relation to their belief-based decisions and communication. This includes coverage for emotional injury claims that result from alleged discrimination, religious communication, or religious activities. The endorsement also offers funds to help respond to targeted actions by government agencies, as well as tax-exemption challenges. 

In addition, for colleges and universities, Brotherhood Mutual offers a Religious Freedom Protection Coverage Educational Institution Extension that protects faith-based educational institutions from threats related to:

• Acts that would be considered discrimination under Title IX or any other applicable federal, state, or local statute, ordinance, or law.
• Your ability or your students’ ability to receive federal financial aid under Title IV.
• Your ability or your students’ ability to receive financial aid or scholarships through federal, state, or local programs (other than Title IV).
• Accreditation challenges.

Of course, coverage is determined at the time of a claim, subject to all terms, conditions, and exclusions.

Posted December 2022

The information provided in this article is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.