On Tuesday, the U.S. Senate passed a bill requiring the federal government and states to recognize as valid same-sex marriages legally performed in states without existing prohibitions on the practice.
The Senate ultimately passed the bill by a margin of 61-36, with 12 Republicans voting with Democrats to approve the bill. Democratic Sen. Cory Booker (N.J.) provided the 60th vote to defeat the threat of a filibuster.
Democratic Sen. Raphael Warnock (Ga.), who is campaigning for re-election ahead of a Dec. 6 runoff election, was not present. Republican Sens. Pat Toomey (Pa.) and Ben Sasse (Neb.), both opponents of same-sex marriage, were also absent.
Currently, same-sex marriage is legal in all 50 states, due to the U.S. Supreme Court’s decision in the 2015 Obergefell v. Hodges case, which struck down all existing state-level bans on same-sex nuptials as unconstitutional.
But after the Supreme Court reversed its own precedent in a recent case involving abortion rights — thereby returning the issue to individual states to decide — supporters of same-sex marriage feared that the court, which is stacked 6-3 in favor of Republican-appointed judges, might behave similarly and reverse the Obergefell decision.
Such a decision would revive bans in the 35 states that either have constitutional amendments or statutes, or both, banning same-sex marriage. To protect against such a possibility, supporters urged lawmakers to affirmatively repeal the 1996 Defense of Marriage Act and require both the federal government and various states with bans on the books to recognize same-sex marriages performed in states without prohibitions.
The resulting legislation, the Respect for Marriage Act, passed the House with bipartisan support in July, winning the backing of 47 House Republicans. The bill then went to the U.S. Senate, where it encountered a roadblock in the form of Senate Republicans concerned about protections for religious entities and religiously-affiliated nonprofits.
Supporters of same-sex marriages also added protections for interracial marriages to the bill, based primarily on the fact that, like same-sex marriages, bans on interracial marriage — which had were struck down as unconstitutional by the Supreme Court in the 1967 Loving v. Virginia case — remain on the books in some states.
At the behest of a group of five senators, Senate Majority Leader Chuck Schumer (D-N.Y.) delayed a vote on the measure until after the Nov. 8 midterm elections, in order to give supporters more time to convince wavering Republicans to support the bill and allow the group to craft language that would ensure protections for conscientious objectors to same-sex nuptials.
The resulting bill, with that language intact, clarifies that churches are not required to perform same-sex marriages, exempts nonprofit religious organizations from having to provide services, facilities, or goods for a same-sex marriage, and protects objectors from being penalized or losing special accreditations or tax breaks due to their opposition to same-sex nuptials. The bill also maintains a ban on polygamous marriages.
While some proponents of same-sex marriage were disappointed at the addition of religious liberty protections or complained that the bill did not go far enough in codifying Obergefell into law — for instance, the bill permits a state with a ban on same-sex marriage to refuse to issue marriage licenses to same-sex couples within its own borders — Kelley Robinson, the president of the Human Rights Campaign, the nation’s largest LGBTQ civil rights organization, defended the bill’s language.
“The bill does as much as Congress can possibly do to protect our marriages,” Robinson told Metro Weekly in an interview. “The reality is that the US Constitution grants states and not Congress the right to affirm who will be able to marry within their state. What this bill does, is it goes as far as Congress possibly can to ensure that if you have a marriage today, it will be valid and celebrated no matter where you live in this country. That is powerful.
“For so many of us — and I’m talking to you as a married person, I’m talking to someone who involved in the reproductive rights movement, where the Supreme Court showed us that so many of our rights in this country are just one decision away from being overruled — this matters,” Robinson added. “Hundreds of thousands of people will be breathing a sigh of relief because of this bill’s passing.”
Prior to the final vote, senators rejected three amendments to the bill offered by Republican Sens. Mike Lee (Utah), James Lankford (Okla.), and Marco Rubio (Fla.) that sought to carve out additional exemptions for religiously-affiliated entities and individuals. Proponents of the Respect for Marriage Act dubbed the amendments “poison pills” because, if approved, they would significantly water down the bill, weakening protections for same-sex marriage and potentially risking the loss of Democratic senators’ support.
Lee’s amendment — which unlike the others, required 60 votes to pass — failed 48-49, on a largely party-line vote, with only Sens. Susan Collins (R-Maine) and Joe Manchin (D-W.V.) voting with the opposite political party. Lankford and Rubio’s amendments failed by a 45-52 margin.
“Mr. President, what a great day. What a great day,” Schumer said, addressing the presiding officer, following the bill’s passage.
HRC’s Robinson said that, in the end, the 12 Republicans who had voted to advance debate on the bill earlier this month, proved they would stand strong on the issue and not waver, even while facing threats of backlash from socially conservative organizations.
“Any threats of repercussions against [Respect for Marriage Act supporters] are coming from people that are extreme and out of touch with where the majority of Americans are,” Robinson told Metro Weekly. “Over 70% of the country is with us on this issue, and that includes a majority of Republicans across every state. So anyone that’s going to come after them is out of touch and out of step with where the reality of this country is. We are in support of marriage equality. The policy is catching up to the people at this point.”
The bill now must go back to the U.S. House of Representatives to be approved, in its current form, without additional amendments, before it can be sent to the desk of President Joe Biden for his signature into law.
House Speaker Nancy Pelosi (D-Calif.), hailed the Senate vote as a “historic step forward” and promised to pass the bill within the next week. Democrats still control the House of Representatives until the new Congress is seated in January.
“Since the Supreme Court’s monstrous decision overturning Roe v. Wade, extreme MAGA Republicans have set their sights on additional personal freedoms,” Pelosi said in a statement. “In his concurring opinion, Clarence Thomas explicitly called on the Court to reconsider the right to marriage equality handed down in its Obergefell decision. Once signed into law, the Respect for Marriage Act will prevent right-wing extremists from uprooting legal precedent, tearing away fundamental freedoms and upending the lives of families across the country.”
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