senate advances bill to codify same sex marriage protections scaled

The Senate on Wednesday advanced legislation to codify protections for same-sex marriage, clearing a major procedural hurdle that required the support of 10 Republicans.

The Senate voted 62 to 37 to move forward with the Respect for Marriage Act, a bill that would formally repeal the Defense of Marriage Act, the 1996 federal law that banned same-sex marriage but that was overturned by the 2015 Supreme Court decision in Obergefell v. Hodges that made same-sex marriage legal nationwide. The bill would also require states to recognize valid same-sex and interracial marriages performed in other states.

A bipartisan group of senators has spent months trying to find enough GOP support to move the bill, which needed 60 votes to overcome a filibuster. Every Democrat backs the bill, which meant the group needed at least 10 GOP senators. By Wednesday, they had 12.

Those Republicans were Sens. Susan Collins (Maine), Thom Tillis (N.C.), Rob Portman (Ohio), Roy Blunt (Mo.), Cynthia Lummis (Wyo.), Richard Burr (N.C.), Shelley Moore Capito (W.Va.), Dan Sullivan (Alaska), Mitt Romney (Utah), Joni Ernst (Iowa), Lisa Murkowski (Alaska) and Todd Young (Ind.).

Sen. Ben Sasse (R-Neb.) did not vote.

Sen. Tammy Baldwin (D-Wis.), a lead sponsor of the Respect for Marriage Act and the first openly lesbian U.S. senator, told her colleagues they are on “the cusp of a historic vote in the Senate” with this bill.
Ian Forsyth via Getty Images

Some of the Republicans who voted to advance the bill, like Collins and Murkowski, were not a surprise. They’ve advocated for LGBTQ rights in the past. But others appeared to be new to taking action to protect same-sex marriage, even if this was just a procedural vote.

“After hearing directly from Iowans, and closely reviewing the amended language, I believe this bill protects religious freedoms and will simply maintain the status quo in Iowa,” Ernst said in a statement.

“Marriage is a deeply personal issue, and I have listened carefully to individuals across Wyoming to hear their perspective on this matter,” Lummis said in a statement. “Ultimately, my decision to proceed on this bill was guided by two things ― the Wyoming Constitution and ensuring religious liberties for all citizens and faith-based organizations were protected. Equality is enshrined in the Wyoming constitution, and this legislation is consistent with Article I, Section III.”

The bill now awaits a final vote, and it only requires 51 votes to pass. Unless Republicans unanimously agree to hold a vote immediately, the soonest it can happen is in about two weeks, according to a Senate Democratic leadership aide.

If the Senate passes the bill before the end of the year, it will head to the House for a simple up-or-down vote. If the House approves it, it’s off to President Joe Biden’s desk.

The House passed its own bill in July, not long after the Supreme Court gutted Roe v. Wade. That bill was more expansive and picked up 46 GOP supporters. But it stalled in the Senate, where some Republicans raised concerns that it would stifle religious liberty.

In the end, the sponsors of the Senate bill resolved the issue by cobbling together an amendment to the House bill that explicitly states that the bill won’t recognize polygamy and won’t negatively affect religious liberty protections.

“We are on the cusp of a historic vote in the Senate.”

– Sen. Tammy Baldwin (D-Wis.)

During Wednesday’s floor debate, Portman emphasized all the things the Senate bill does not do, apparently an attempt to ease concerns among conservatives. It doesn’t require any states to perform same-sex marriages, in the event that the Supreme Court strikes down Obergefell, he said, and it “certainly” does not allow polygamy.

“It keeps the federal government out of the business of defining marriage,” said the Ohio Republican. “On my side, that is particularly important, to leave the decision to the states where it properly belongs.”

Same-sex and interracial marriages are already legal nationwide. The reason Congress is taking action is in response to conservatives on the Supreme Court recently overturning Roe v. Wade, eviscerating 50 years of precedent, and signaling they could use the same rationale for overturning cases that have established the right to same-sex and consensual relationships.

Justice Clarence Thomas, for one, had this to say in a concurring opinion when the court overturned Roe v Wade: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”

He was referring to the rights recognized in Griswold (contraception), Lawrence (sexual conduct with a member of the same sex) and Obergefell (same-sex marriage).

Thomas and Justice Samuel Alito have called for revisiting same-sex couples’ constitutional right to marry, too. In October 2020, they said the court’s 2015 decision on marriage equality was “undemocratic” and that “the court has created a problem that only it can fix.”

Supreme Court Justice Clarence Thomas has suggested the court could use the same rationale it used for overturning Roe v. Wade to overturn other cases relating to same-sex marriage and the right to privacy.

Supreme Court Justice Clarence Thomas has suggested the court could use the same rationale it used for overturning Roe v. Wade to overturn other cases relating to same-sex marriage and the right to privacy.
Alex Wong via Getty Images

Jennifer Pizer, chief legal officer at Lambda Legal, an LGBTQ rights organization, said even though key parts of the Defense of Marriage Act haven’t been enforceable since 2013 because of previous Supreme Court decisions, marriage bans still live on the books in many states.

“With the current extremist orientation of the Court raising concerns that Obergefell may be next on the Court’s hit list, married same-sex couples are confronting the possibility that their marriages may once again be recognized in one state, but not another,” Pizer said in a statement. “The Respect for Marriage Act addresses that concern.”

She added that while the Senate bill is “not perfect,” it will “ensure marriages solemnized validly anywhere in these United States are valid everywhere in our country without government discrimination based on sex, race, ethnicity, or national origin.”

On Wednesday, Sen. Tammy Baldwin (D-Wis.), a lead sponsor of the Respect to Marriage Act and the first openly lesbian U.S. senator, said Justice Thomas’ suggestion that the court may be turning its attention to same-sex marriage had the effect of “instilling fear among millions of Americans.”

“He was essentially providing an open invitation to litigators across the country to bring their cases to the court,” she said.

Baldwin has been part of the bipartisan group of senators trying to get this bill passed, along with Collins, Portman, Tillis and Sen. Kyrsten Sinema (D-Ariz.).

It’s not right that “our family members, our neighbors, our congressional staff members and certainly our constituents are scared,” Baldwin said to her colleagues, urging their support for the bill. “They are scared that the rights they rely upon to protect their families could be taken away… They are scared for good reason.”

“We are on the cusp of a historic vote in the Senate,” she added.

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