Thomas Berg.
Thomas Berg. (Liam James Doyle/University of St. Thomas)

Law Professor Helps Lawmakers Find Balance, Protect Freedoms and Pass Respect for Marriage Act

The Respect for Marriage Act (RFMA) was passed by the U.S. Senate on Nov. 29 with the help of analysis and support from a group of leading religious liberty scholars that included School of Law Professor Thomas Berg.

The bill, which was signed into law on Dec. 13, requires all states to recognize same-sex unions legally performed elsewhere in the country. The legislation had existed in some form in Washington, D.C., for several years, but garnered renewed attention when the U.S. Supreme Court overturned Roe v. Wade in June 2022 and Justice Clarence Thomas made comments about reversing Obergefell v. Hodges, which legalized same-sex marriage.

Though previously versions of the RFMA were unsuccessful, the latest version was ultimately passed because its authors negotiated an amendment for religious liberty protections, specifically that churches and other faith-based organizations would not lose their tax-exempt status or risk federal grant money because of their objections to same-sex marriages. The amendment secured endorsement of the bill from religious groups such as The Church of Jesus Christ of Latter-day Saints.

It was also endorsed publicly by top constitutional law experts Thomas Berg, Douglas Laycock from the University of Virginia, Carl Esbeck from the University of Missouri and Robin Fretwell Wilson from the University of Illinois, who co-authored a letter to Sen. Susan Collins (Maine) and Sen. Tammy Baldwin (Wisconsin) prior to the Senate’s approval of the RFMA. It urged Republican senators to support the bill and explained the religious freedom protections that had been added. During the floor debate, Sen. Rob Portman (Ohio), a lead Republican proponent of the bill, repeatedly quoted and cited the letter from Berg and his colleagues – “the opinion of leading experts in the field” – as the key analysis showing that the religious liberty protections were significant.

For Berg and his colleagues, the passage of the Respect for Marriage Act is an important milestone during a time of significant political polarization and an example of how groups on two sides of a legislative issue can find balanced solutions and respect the constitutional freedoms of both sides.

“The great benefit of this law is that it will exemplify that we can protect both same-sex marriage rights and religious liberty – indeed, as a practical matter in our divided times, we must protect one as we protect the other,” Berg said. “The refusal by activists on both sides to seek balanced solutions has blocked the passage of LGBTQ nondiscrimination laws and harmed the appeal of religious liberty as a fundamental right. This bill helpfully shows that it’s possible to overcome the impasse, even in a small way; thus, it could encourage future, broader efforts.”

Thomas Berg is the James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas School of Law. He is an accomplished scholar in the area of religious liberty and the supervising attorney of the law school's Religious Liberty Appellate Clinic. The clinic supports religious freedom for all faiths and has filed briefs on behalf of Muslim, Jewish and Christian adherents and groups. His new book, Religious Liberty in a Polarized Age, will be published in 2023 by Eerdmans Publishing.