SR138

A Senate Resolution urging the United States Congress to reject legislation which would enable discrimination against marriage equality for same-sex couples under the guise of religious freedom.

Whereas, Same-sex couples, of whatever affectional or sexual orientation, have a fundamental right to marry in all 50 states, and have their marriage honored in every state, as protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, based on the landmark ruling of the United States Supreme Court, Obergefell v. Hodges, 2015 U.S. LEXIS 4250, handed down June 26, 2015; and

Whereas, While this important, nationwide recognition of same-sex marriage finally provides, as Associate Justice Anthony Kennedy stated in the Court’s opinion, “equal dignity in the eyes of the law,” Obergefell, 2015 U.S. LEXIS 4250, at *51, for all loving, devoted same-sex couples, members of Congress are already taking action to undermine this hard-fought and long-deserved marriage equality; and

Whereas, Just nine days prior to the Supreme Court’s ruling, perhaps anticipating a Court decision that would run contrary to the desires of some to preserve prejudices against same-sex couples, Senator Mike Lee of Utah and Representative Raul Labrador of Idaho each introduced legislation in their respective Houses, titled the “First Amendment Defense Act,” S. 1598 and H.R. 2802, 114th Cong., 1st Sess. (2015), which they claim intends to prevent the federal government from taking any discriminatory action against a person on the basis that such person believes or acts, in accordance with a religious belief or moral conviction protected by the First Amendment to the United States Constitution, that marriage is only the union of one man and one woman; and

Whereas, While the federal government has no authority under the First Amendment to pass judgment on a person’s religious convictions, the “First Amendment Defense Act” would allow private citizens and public officials and employees the enhanced ability to discriminate against persons already in or entering into same-sex marriages under the guise of religious freedom, with no protective recourse available from the federal government to stop such discrimination; and

Whereas, This lack of federal, uniform protective recourse would have immediate consequences, as state-to-state protections for persons based on their affectional or sexual orientation differ, and of greater concern, less than half of the states, New Jersey being amongst this minority, expressly provide statutory discrimination protections for such persons; and

Whereas, Examples of such discrimination by private citizens proceeding unchecked by the federal government and by many state governments could include an employer’s refusal to provide spousal benefits or other workplace discrimination against an employee who enters into a same-sex marriage, a landlord’s refusal to rent an apartment to a married same-sex couple, or a denial of social services by a private recipient of federal grants or contracts based on that recipient’s refusal to recognize a person’s same-sex marriage; and

Whereas, Perhaps more alarming given government’s role in serving all people, examples of such discrimination by public officials and employees proceeding unchecked by the federal government and by many state governments could include a refusal to process income tax filings, issue Social Security checks or other financial benefits, or otherwise administer services to a person in a same-sex marriage; and

Whereas, A lack of federal, uniform protective recourse to prohibit such discrimination and ensure same-sex couples “equal dignity in the eyes of the law” would lead to a patchwork of unequal, prejudicial treatment of same-sex married couples by private citizens and public officials and employees throughout the country, contrary to the Supreme Court’s Obergefell decision and contrary to the fundamental right for any couple to marry and receive the benefits of such marriage nationwide as now protected under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; and

Whereas, Given the potential broad attack on nationwide marriage equality, it is disappointing that in the House of Representatives, among the co-sponsors of the “First Amendment Defense Act” are Representatives Scott Garrett and Chris Smith of New Jersey, elected congressmen from the State that has rightly recognized marriage as an equal right for all couples under our own Constitution since 2013, in accordance with Garden State Equality v. Dow, 434 N.J. Super. 163 (Law. Div. 2013); and

Whereas, The “First Amendment Defense Act” should not be enacted by the Congress, due to the potential harms it would inflict on nationwide marriage equality, which are so greatly at odds with the Obergefell decision and the protections of the fundamental right to marry and receive the benefits of marriage guaranteed to any couple, regardless of their affectional or sexual orientation, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, and, additionally, so contrary to this country’s continuing march towards the eradication of bigotry in all its forms in order to realize a United States that finally achieves fundamental fairness and equality under the law for everyone; now, therefore,

Be It Resolved by the Senate of the State of New Jersey:

1. This Senate urges the United States Congress to reject the “First Amendment Defense Act,” which would enable discrimination against marriage equality for same-sex couples, and by extension discrimination against persons on the basis of their affectional or sexual orientation, under the guise of religious freedom. The legislation could permit a broad attack on nationwide marriage equality by providing private citizens and public officials and employees the enhanced ability to discriminate against persons already in or entering into same-sex marriages under the guise of religious freedom, with no protective recourse available from the federal government to stop such discrimination. The resulting lack of federal, uniform protective recourse to prohibit such discrimination would lead to a patchwork of unequal, prejudicial treatment of same-sex married couples by private citizens and public officials and employees throughout the country. This idea runs contrary to the Supreme Court’s marriage equality decision in Obergefell v. Hodges, 2015 U.S. LEXIS 4250, handed down June 26, 2015, and contrary to the fundamental right for any couple to marry in all 50 states, and have that marriage honored in each state, as now protected under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.

2. Copies of this resolution, as filed with the Secretary of State, shall be transmitted by the Secretary of the Senate to the following officers and members of the United States Congress: the President of the Senate; the Senate Majority Leader; the Senate Minority Leader; the Speaker of the House of Representatives; the House Majority Leader; the House Minority Leader; and each member of Congress elected from this State.

STATEMENT

This Senate resolution urges the United States Congress to reject the “First Amendment Defense Act,” federal legislation which would enable discrimination against marriage equality for same-sex couples under the guise of religious freedom. See S.1598 and H.R. 2802, 114th Cong., 1st Sess. (2015).

The federal sponsors claim the “First Amendment Defense Act” is intended to prevent the federal government from taking any discriminatory action against a person on the basis that such person believes or acts, in accordance with a religious belief or moral conviction protected by the First Amendment to the United States Constitution, that marriage is only the union of one man and one woman. While the federal government has no authority under the First Amendment to pass judgment on a person’s religious convictions, the legislation would allow private citizens and public officials and employees the enhanced ability to discriminate against persons already in or entering into same-sex marriages under the guise of religious freedom, with no protective recourse available from the federal government to stop such discrimination.

This lack of federal, uniform protective recourse would have immediate consequences, as state-to-state protections for persons based on their affectional or sexual orientation differ, and of greater concern, less than half of the states, New Jersey being amongst this minority, expressly provide statutory discrimination protections for such persons. See N.J.S.A. 10:5-1 et seq. (New Jersey’s “Law Against Discrimination,” which includes express protections concerning “affectional or sexual orientation”).

The result would be a patchwork of unequal, prejudicial treatment of same-sex married couples by private citizens and public officials and employees throughout the country. This idea runs contrary to the Supreme Court’s marriage equality decision in Obergefell v. Hodges, 2015 U.S. LEXIS 4250, handed down June 26, 2015, and contrary to the fundamental right for any couple - regardless of their affectional or sexual orientation - to marry in all 50 states, and have that marriage honored in each state, as now protected under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Thus, the United States Congress should reject the “First Amendment Defense Act.”