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Just as the U.S. Senate appears to be on the verge of passing the controversial Respect for Marriage Act (RFMA), a group of 12 senators are calling for a delay in the vote until a new amendment can be considered that will ensure religious freedom to those who oppose same-sex marriage.

After the Senate voted on November16 to advance the RFMA by a vote of 62-37, with 12 Republicans joining all 50 Democrats in favor of the bill, Senator Mike Lee (R-UT) released a letter signed by a dozen senators calling upon their colleagues to oppose cloture on the Respect for Marriage Act unless an amendment sponsored by Lee can be added to the bill.

As Lee explains, during the Obergefell oral arguments in 2015, there was an infamous exchange between Justice Alito and then–Solicitor General Donald Verrilli. In response to Justice Alito asking whether, should states be required to recognize same-sex marriages, religious universities opposed to same-sex marriage would lose their tax-exempt status, General Verrilli replied, “ . . . it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito, --it is going to be an issue.”

“And it is an issue,” Lee writes in the letter. “Obergefell did not make a private right of action for aggrieved individuals to sue those who oppose same-sex marriage. It did not create a mandate for the Department of Justice to sue where it perceived an institution opposed same-sex marriage, but the Respect for Marriage Act will. What we can expect should this bill become law is more litigation against those institutions and individuals trying to live according to their sincerely held religious beliefs and moral convictions.”

Should Congress decide to codify Obergefell and protect same-sex marriages, we must do so in a way that also resolves the question posed by Justice Alito, Lee writes.

“Instead of subjecting churches, religious non-profits, and persons of conscience to undue scrutiny or punishment by the federal government because of their views on marriage, we should make explicitly clear that this legislation does not constitute a national policy endorsing a particular view of marriage that threatens the tax-exempt status of faith-based non-profits.”

These are the same arguments waged by the U.S. Conference of Catholic Bishops who say the provisions of the Act that relate to religious liberty are insufficient to protect Americans from government harassment.

“In any context in which conflicts between religious beliefs and same-sex civil marriage arise, the Act will be used as evidence that religious believers must surrender to the state’s interest in recognizing same-sex civil marriages,” said Cardinal Timothy M. Dolan of New York, chairman of the U.S. Conference of Catholic Bishops’ Committee for Religious Liberty.

“Wedding cake bakers, faith-based adoption and foster care providers, religious employers seeking to maintain their faith identity, faith-based housing agencies – are all at greater risk of discrimination under this legislation.”

If Lee’s amendment is added to the act, it would prohibit the federal government from discriminating against anyone who holds a religious belief or moral conviction that marriage is a union between one man and one woman.

“It would affirm that individuals still have the right to act according to their faith and deepest convictions even outside of their church or home,” Lee wrote. “The undersigned ask that you oppose cloture on the Respect for Marriage Act unless the Lee amendment is added to the bill. The free exercise of religion is absolutely essential to the health of our Republic. We must have the courage to protect it.”

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