Same-sex marriage protected under bill passed by U.S. Senate with GOP support

WASHINGTON — The U.S. Senate approved legislation Tuesday that would enshrine protections for same-sex and interracial marriages, codifying many of the rights that would disappear if the U.S. Supreme Court were to overturn those landmark decisions the way it overturned the nationwide right to an abortion this summer. 

The 61-36 bipartisan vote sends the bill back to the U.S. House, where lawmakers expect to give it their final stamp of approval soon, before sending it to President Joe Biden. The House voted 267-157 in July to approve the original bill, but must vote again after a bipartisan group of senators added in religious liberty protections. 

Senate Majority Leader Chuck Schumer, a New York Democrat, wore the same tie Tuesday he wore to his daughter’s wedding and recounted a conversation he had with his daughter and her wife following the death of former U.S. Supreme Court Justice Ruth Bader Ginsburg.

“I remember that awful feeling around the dinner table and I distinctly remember the question my daughter and her wife asked, ‘Could our right to marry be undone?’” Schumer said. 

“It’s a scary, but necessary acknowledgment that despite all the progress we’ve made, the constitutional right to same-sex marriage is not even a decade old and exists only by the virtue of a very narrow 5-4 Supreme Court decision,” Schumer continued. “And we all know the court has changed since that decision.”

Retiring Missouri Sen. Roy Blunt, retiring North Carolina Sen. Richard Burr, West Virginia’s Shelley Moore Capito, Maine’s Susan Collins, Iowa’s Joni Ernst, Wyoming’s Cynthia Lummis, Alaska’s Lisa Murkowski, retiring Ohio Sen. Rob Portman, Utah’s Mitt Romney, Alaska’s Dan Sullivan, North Carolina Sen. Thom Tillis and Indiana’s Todd Young voted for the bill.

Repeal of Defense of Marriage Act

The legislation would repeal the 1996 law known as the Defense of Marriage Act that defined marriage as the union of one man and one woman. The federal law also allowed states to ignore same-sex unions legally performed in other states. 

It would ensure that if the U.S. Supreme Court were to overturn the cases that have legalized same-sex and interracial marriages, the federal government would continue to recognize those unions, a step necessary for hundreds of federal benefits including Social Security and veterans benefits. 

The bill, known as the Respect for Marriage Act, would require states to recognize same-sex and interracial marriages performed in states that keep the unions legal, though it wouldn’t require states to keep same-sex or interracial marriages legal if the U.S. Supreme Court were to overturn those cases.

Cathryn Oakley, Human Rights Campaign state legislative director and senior counsel, said during a briefing in mid-November the bill is a “very important” part of the legislation LGBTQ rights advocates have been pressing Congress to pass for years. 

She also sought to clarify misconceptions the legislation will allow any two people to enter a same-sex or interracial marriage anywhere in the country, should the U.S. Supreme Court overturn those cases.

“Congress has done everything in this bill that it can responsibly do,” Oakley said. “What they do not have the ability to responsibly do, is to tell states that they must marry two people of the same sex.”

Oakley said U.S. lawmakers “are taking the maximum responsible action that they can take at this point” under the powers they have within the U.S. Constitution. 

State bans

More than 30 states have constitutional amendments, state laws, or both that ban same-sex marriages, according to the Congressional Research Service. 

Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Carolina, Ohio, Oregon, South Dakota, Tennessee, Virginia and Wisconsin are among the states with state constitutional amendments that would prohibit same-sex marriages. 

Indiana, Iowa and Pennsylvania are among the states with laws that would prohibit same-sex marriages.

Those laws and state constitutional provisions are currently unenforceable under the U.S. Supreme Court’s 2015 ruling that established same-sex marriages as protected under the Constitution. But they could go into effect again were the justices to overturn that case. States that still have laws banning interracial marriages on the books cannot enforce those laws under the 1967 Loving v. Virginia ruling. 

Missouri Secretary of State Jay Ashcroft criticized his state’s senior senator, Blunt, for voting for the legislation, saying he was “flabbergasted” by the move and noting that the state’s constitutional amendment bars the unions. 

Ashcroft said during an interview with The Missouri Independent he tried to call Blunt to lobby him in opposition to the bill but had been unable to reach him, so he sent a letter instead.

The legislation the U.S. Senate approved Tuesday was spurred by the U.S. Supreme Court’s decision this summer to overturn the two cases that kept abortion legal nationwide, protected as a constitutional right, for nearly half a century. 

Justice Clarence Thomas sparked the concern when he wrote in his concurring opinion in the abortion case the justices “should reconsider all of this Court’s substantive due process precedents” that included similar legal reasoning as the abortion cases. 

Thomas listed Griswold v. Connecticut, the case that established married couples have a constitutional right to decide if and how to use birth control; Obergefell v. Hodges, the 2015 case that legalized same-sex marriage; and Lawrence v. Texas, which overturned state anti-sodomy laws, as three cases he specifically thought the court should revisit. 

LGBTQ rights advocates immediately called on Congress to ensure that any future Supreme Court rulings wouldn’t completely erode marriage rights. 

Republicans on board

The U.S. House approved the legislation in July and the U.S. Senate was on track to vote on the marriage equality bill before the November midterm elections, but Schumer held off at the request of a bipartisan group of senators who added the religious liberty language and who were working to get at least 10 Republicans on board to pass the chamber’s legislative filibuster. 

Sens. Tammy Baldwin, a Wisconsin Democrat; Collins; Portman; Kyrsten Sinema, an Arizona Democrat; and Tillis wrote at the time they were “confident that when our legislation comes to the Senate floor for a vote, we will have the bipartisan support to pass the bill.”

The religious liberty protections now in the bill would protect “all religious liberty and conscience protections available under the Constitution or Federal law,” according to a summary of the changes. 

The legislation would insulate religious organizations, certain religious nonprofits and their employees from being required “to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.”

It would prevent changes to tax-exempt status since “a church, university, or other nonprofit’s eligibility for tax-exempt status is unrelated to marriage, so its status would not be affected by this legislation,” according to the summary. 

The bill passed its first procedural vote in the Senate in mid-November when 12 GOP senators joined Democrats to move past the legislative filibuster. 

GOP amendments

Before the Senate approved the bill Tuesday, lawmakers voted down three Republican amendments. 

Senators voted 48-49 to reject a proposal from Utah Sen. Mike Lee that would have barred the federal government from taking “any discriminatory action,” like eliminating a tax benefit, for any person who “speaks, or acts, in accordance with a sincerely held religious belief, or moral conviction, that marriage is” between one man and one woman or two individuals as recognized under federal law. 

Lee argued ahead of the vote that lawmakers “would do a disservice to all Americans if we elevate the rights of one group at the expense of another.”

The Senate voted 45-52 to reject a proposal from Oklahoma Sen. James Lankford that would have changed who was required to comply with the law from any person acting under “color of state law” to a state, territory, or tribe.

Lankford said Tuesday that the “color of state law” language could refer to any organization that a state contracts with to perform a government function, such as private prisons, adoption agencies, foster care agencies, or homeless shelters. 

Lankford’s amendment would have also removed a section of the bill that would allow people “harmed” by a violation of the law to sue. Lankford said the legislation didn’t define what “harmed” would mean.

Florida Sen. Marco Rubio’s amendment to eliminate the section of the bill that would allow anyone “harmed by a violation” of the law to sue in a U.S. district court was rejected following a 45-52 vote. 

Rubio argued in a written statement that while the legislation included language that “would protect nonprofits whose ‘principal purpose’ is the ‘study, practice, or advancement of religion,’ it would not protect other faith-based organizations.”

Baldwin urged senators to reject the three amendments ahead of the vote, saying they would “upend the months of good-faith negotiations and they would disrupt our carefully crafted bipartisan compromise.”

The religious liberty language added to the bill, Baldwin said, ensures protection for “religious liberties afforded under our Constitution and federal law.”

“We are not pushing this legislation to make history,” she said. “We are doing this to make a difference for millions upon millions of Americans.”