The Senate on Tuesday passed a bill to codify protections for same-sex and interracial marriages, a historic vote aimed at protecting people’s civil rights in the event that the conservative-led Supreme Court decides to dismantle marriage equality on the heels of gutting abortion rights.
The Respect for Marriage Act passed, 61 to 36. Every Democrat present voted for it, and they needed at least 10 Republicans to vote with them. They got 12.
Those GOP senators, some of whom have not previously advocated for LGBTQ rights, were 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.).
Collins, Portman and Tillis were co-sponsors of the bill, along with Democratic Sens. Tammy Baldwin (Wis.) and Kyrsten Sinema (Ariz.). In order to expedite the bill, they agreed to raise the threshold for passing it from 51 to 60 votes, and allowed votes on a handful of amendments from conservatives. None passed.
The measure now heads to the House and, assuming it passes, to President Joe Biden to be signed into law. House Majority Leader Steny Hoyer (D-Md.) told reporters Tuesday that the House plans to take up and pass the bill as soon as next Tuesday.
The bill does two things: It repeals the Defense of Marriage Act, the 1996 federal law that banned same-sex marriage, and it requires states to recognize valid same-sex marriages from other states. It also ensures the same protections for interracial marriages.
Same-sex and interracial marriages are, of course, already legal nationwide. But Congress is pushing through this bill in response to conservatives on the Supreme Court overturning Roe v. Wade this year, destroying 50 years of precedent, and suggesting that they could use the same rationale for overturning landmark decisions 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 June: “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 previously called for revisiting same-sex couples’ constitutional right to marry, too. In October 2020, they said the Obergefell decision was “undemocratic” and that “the court has created a problem that only it can fix.”
Without Obergell in effect, most states would have same-sex marriage bans. Thirty-five states still have laws on the books, whether in their constitutions, state laws or both, outlawing marriage equality.
Put another way, if the Supreme Court overturned Obergefell, the Respect for Marriage Act ensures that there is no federal ban in place that would invalidate hundreds of thousands of same-sex marriages that have been legally carried out to date. It also ensures that states with same-sex marriage bans, like Utah, would still have to recognize same-sex marriages performed in states with their own marriage equality laws, such as Massachusetts.
During Tuesday’s debate, Majority Leader Chuck Schumer (D-N.Y.) became emotional as he talked about marriage equality being deeply personal for a lot of people, including him. He said he was wearing the same tie that he wore to his daughter’s wedding to her wife, “one of the happiest moments of my life,” and remembered how worried she was about her rights being taken away after Supreme Court Justice Ruth Bader Ginsberg died in 2020.
“Two years after my daughter and her wife questioned if their marriage could be undone, they are now expecting a baby next spring,” Schumer said, choking up. “I want them to raise their child with all the love and security that every child deserves. The bill we are passing today will ensure their rights won’t be trampled upon simply because they are in a same-sex marriage”
“After this bill passes, they will be the very first people I call,” he said.
The most powerful speech in support of the bill, though, was from an unexpected supporter: Sen. Cynthia Lummis (R-Wyo.), who is otherwise socially conservative. She emphasized that the bill was carefully crafted to protect people’s same-sex marriages and religious freedom, and said America is due for some compassion and acceptance of other people’s differences.
“These are turbulent times for our nation,” said the Wyoming Republican. “Americans address each other in more crude and cruel terms than ever in my lifetime. It is jarring and unbecoming of us as human beings. It is highly intolerant and frequently the most so when expressed by those who advocate for tolerance. Many of us ask ourselves, our nation is so divided, when will this end? And how will it end?”
Lummis compared today’s climate to the founding of America, when people of diverse faiths, beliefs and backgrounds had no choice but to come to terms with each other and respect each other’s rights, even before the U.S. Constitution enumerated those rights.
“They had to tolerate each other in order to survive as a nation,” she said. “For the sake of our nation today and its survival, we do well by taking this step [in passing the bill]. Not embracing or validating each other’s devoutly held views but by the simple act of tolerating them. And that ... explains my vote.”
Senate Majority Whip Dick Durbin (D-Ill.) was moved by Lummis’ remarks.
“That was an outstanding statement,” he said after her speech. “I’m sure your position has not been an easy one at home, but it reflects some thoughtful consideration on your part. Most importantly, it reflects your appeal to us in this chamber and to the nation to really seize this opportunity for tolerance.”
He added, “Your statement really touched my heart.”
Conservative groups fought hard to try to sink the bill in recent weeks, arguing that it erodes religious liberty, despite the bill explicitly including language to protect it. The Heritage Foundation, for one, launched a $1 million campaign to run ads against the bill during NFL and college football games.
Sen. Mike Lee (R-Utah), a vocal opponent of the bill, argued Tuesday that the bill is unnecessary.
“There is no existing threat to same-sex marriage,” Lee said. “We have a current, real, sustained, ongoing assault on religious freedom. How we proceed today will do nothing to the status quo of same-sex marriage in this country.”
He also said that Thomas never explicitly said he wanted to overturn Obergefell.
“He was suggesting that it be analyzed, like all substantive due process jurisprudence, to figure out whether there might be another provision of the Constitution under which it might be more appropriate,” said the Utah Republican. “You’re attributing to him statements he didn’t make.”
But Portman, one of the bill’s GOP sponsors, called out his Republican colleagues for making bogus claims about the bill attacking religious freedom. He pointed out that eight prominent faith-based organizations, including the Mormon church, based in Lee’s home state, support the bill.
“Critics of this bill continue to level accusations about what this bill does that are simply not accurate,” Portman said.
The bill has no effect on religious groups’ tax exempt status, he emphasized, and it doesn’t put them at any more risk for litigation.
“The bill only governs the conduct of state actors and contains no litigation tools that would be used against private religious entities … even ones who get a majority of funding from the state,” said the Ohio Republican.