The United States Senate voted Tuesday to cement safeguards for same-sex and interracial marriages, codifying numerous rights that would be lost if the Supreme Court were to reverse those historic rulings in the same manner in which it reversed the countrywide right to abortion last summer.
The measure was approved by a bipartisan margin of 61 to 36, and it will now return to the House of Representatives to get final approval before being sent to Vice President Joe Biden. The House passed the initial measure by a 267-157 margin in July, but it now has to pass it again after a group of senators from both parties added provisions for religious liberty.
New York Democrat and Senate Majority Leader Chuck Schumer wore the same tie to a press conference Tuesday on the death of former Supreme Court Justice Ruth Bader Ginsburg. Schumer also recalled a conversation he had with his daughter and her husband about Ginsburg.
For example: “I recall that horrible sensation around the dinner table, and I remember well my daughter and her wife asking, “Could our freedom to marry be undone?” a statement from Schumer.
Schumer went on to say that this was “a sobering but essential acknowledgment that despite all the progress we’ve achieved, the fundamental right to same-sex marriage is not even a decade old and survives only by the grace of a very narrow 5-4 Supreme Court ruling.” And, as we all know, the court has evolved since that ruling.
All retiring senators—Roy Blunt of Missouri, Richard Burr of North Carolina, Shelley Moore Capito of West Virginia, Susan Collins of Maine, Joni Ernst of Iowa, Cynthia Lummis of Wyoming, Lisa Murkowski of Alaska, Rob Portman of Ohio, Mitt Romney of Utah, Dan Sullivan of Alaska, Thom Tillis of North Carolina, and Todd Young of Indiana—voted in favor of the bill.
Dismantling the Defense of Marriage Act
The Defense of Marriage Act, a statute from 1996, legally defined marriage as the union of one man and one woman. This bill would do away with that provision. In addition, the federal statute gave each state the option to disregard same-sex marriages that were lawfully conducted in another state.
It would guarantee that the federal government would continue to recognize same-sex and interracial marriages if the Supreme Court were to reverse the rulings that have authorized such unions. This is required for hundreds of federal benefits, such as Social Security and veterans’ benefits.
The Respect for Marriage Act would oblige states to recognize same-sex and interracial weddings conducted in states that maintain the unions lawful, but it would not require states to keep same-sex or multiracial marriages legal if the U.S. Supreme Court were to reverse those rulings.
During a briefing in mid-November, Cathryn Oakley, state legislative director and senior counsel for the Human Rights Campaign, said that the measure is a “very essential” piece of the legislation that LGBTQ rights groups have been urging Congress to approve for years.
She also attempted to dispel that the measure would enable any two individuals to join a same-sex or interracial marriage anywhere in the nation, should the U.S. Supreme Court reverse those rulings.
“Congress has done all in this law that it can reasonably do,” Oakley added. “What they do not have the capacity to appropriately do, is to tell states that they must marry two persons of the same sex.”
Oakley said U.S. legislators “are taking the maximum responsible action that they can do at this point” given the authorities they have inside the U.S. Constitution.
According to the Congressional Research Service, more than 30 states have either a constitutional amendment prohibiting same-sex weddings or state legislation prohibiting same-sex marriages.
A number of states have proposed constitutional amendments to outlaw same-sex weddings. These include Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Carolina, Ohio, Oregon, South Dakota, Tennessee, Virginia, and Wisconsin.
Some states have passed legislation that would make same-sex marriage illegal, including Indiana, Iowa, and Pennsylvania.
The 2015 U.S. Supreme Court decision that recognized same-sex marriages as constitutional rendered such statutes and state constitutional provisions null and void. However, they may be reinstated if the Supreme Court reverses that decision. The 1967 Loving v. Virginia decision made it illegal for states to enforce their own laws that prohibited interracial marriages.
Jay Ashcroft, the secretary of state of Missouri, was “flabbergasted” when senior senator Roy Blunt voted for the bill and pointed out that an amendment to the state constitution prohibits labor unions.
In an interview with The Missouri Independent, Ashcroft said that he had attempted to phone Blunt to influence him against the measure but had been unsuccessful.
The Supreme Court’s decision last summer to reverse the two rulings that had upheld the constitutionality of abortion throughout the country for almost half a century prompted the legislation that the Senate adopted Tuesday.
Concern was raised by Justice Clarence Thomas’s concurring opinion in the abortion case, in which he said that the Court “should review all of this Court’s substantive due process opinions” that used the same legal logic.
Thomas suggested the court reconsider three specific cases: Griswold v. Connecticut, which established that married couples have a right to decide if and how to use birth control; Obergefell v. Hodges, which legalized same-sex marriage in 2015; and Lawrence v. Texas, which overturned state anti-sodomy laws.
Advocates for LGBTQ rights quickly urged lawmakers to take action to prevent further erosion of marriage rights in the event of future Supreme Court verdicts.
Support from Republicans
The House passed the bill in July, and a vote on the marriage equality bill in the Senate was scheduled for before the November midterm elections. However, Schumer delayed the vote at the request of a 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.
Wisconsin Democrat Tammy Baldwin, Ohio Republican Rob Portman, Ohio Democrat Kyrsten Sinema, and South Carolina Republican Thom Tillis stated at the time that they were “confident that when our measure gets to the Senate floor for a vote, we will have the bipartisan support to approve the law.”
According to a description of the amendments, the bill’s new religious liberty safeguards would uphold “all religious liberty and conscience protections available under the Constitution or Federal law.”
There would be no legal obligation for a religious institution or a religious nonprofit or its employees “to provide services, accommodations, advantages, facilities, commodities, or privileges for the solemnization or celebration of a marriage” under the proposed law.
According to the summary, “a church, university, or other nonprofit’s eligibility for tax-exempt status is unrelated to marriage, hence it would not be impacted by this law” as its status would not change.
There was a first procedural vote on the measure in the Senate around the middle of November when 12 Republicans joined Democrats in voting to overcome the legislative filibuster.
Conservative Party Amendments
On Tuesday, before the Senate voted to adopt the measure, three Republican amendments were defeated.
Senators voted 48-49 against Utah Senator Mike Lee’s proposal to prevent “any discriminatory action,” such as the removal of a tax benefit, against anyone 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 by federal law.
Before the vote, Lee stated that legislators “would do a disservice to all Americans if we elevate the rights of one group at the cost of another.”
Oklahoma Senator James Lankford’s proposal to shift who must comply with the statute from anybody operating under “cover of state law” to a state, territory, or tribal was rejected by a vote of 45 to 52.
On Tuesday, Lankford said that any entity that the state contracts with to perform a government job, including private prisons, adoption agencies, foster care organizations, and homeless shelters, might be covered by the “color of state law” wording.
The portion of the measure that would have allowed anyone who was “harmed” by a breach of the statute to file a lawsuit was also targeted by Lankford’s amendment. Lankford argued that the Act failed to clarify the meaning of “harmed.”
In a 45-52 vote, senators rejected an amendment from Florida’s Marco Rubio that would have prevented anybody “harmed by a breach” of the statute from filing a lawsuit in federal district court.
In a statement, Rubio said that the bill would “protect charities whose major purpose is the study, practice, or propagation of religion,’ but would not protect other faith-based groups.”
Baldwin encouraged senators to vote against the three amendments because they would “upend the months of good-faith discussions and they will undermine our painstakingly established bipartisan consensus.”
Baldwin said that the “religious rights guaranteed to us under our Constitution and federal law” will be protected thanks to the new wording in the measure protecting such liberties.
They are not trying to pass this law in order to create history, she remarked. We want to help tens of millions of people in the United States, therefore we’re taking this action.