The Senate on Wednesday advanced the Respect for Marriage Act, which would enshrine marriage equality into federal law, clearing the way for the bill’s final passage in the chamber this week.
In a 62-37 vote, senators agreed to end the debate on the bill and advance it. Twelve Republicans joined all 50 members of the Democratic caucus to vote in support of the bill, surpassing the 60 votes needed to avoid a filibuster.
Democrats have warned since June that federal protections for same-sex and interracial marriages, as well as other rights, could be at risk after the Supreme Court overturned Roe v. Wade, which for nearly 50 years had guaranteed the right to an abortion in the United States.
“Today, the Senate is taking a truly bold step forward in the march toward greater justice, greater equality, by advancing the Respect for Marriage Act,” Senate Majority Leader Charles E. Schumer (D-N.Y.) said before the vote Wednesday. “It’s a simple, narrowly tailored, but exceedingly important piece of legislation that will do so much good for so many Americans. It will make our country a better, fairer place to live.”
In July, the House passed the Respect for Marriage Act, but the Senate delayed its vote on the bill until after the midterm elections. The decision to postpone the vote was negotiated on a bipartisan basis and was made to ensure that there were enough votes to pass the measure.
“Marriage equality is too important an issue to risk failure,” Schumer said Wednesday. “So I chose to trust the members who worked so hard on this legislation and wait a little bit longer to give the bipartisan process a chance to play out.”
The Respect for Marriage Act would require that people be considered married in any state as long as the marriage was valid in the state where it was performed. The bill would also repeal the 1996 Defense of Marriage Act, which defined marriage as the union of one man and one woman and allowed states to decline to recognize same-sex marriages performed in other states. That law has remained on the books despite being declared unconstitutional by the Supreme Court’s ruling in Obergefell v. Hodges.
Speaking on the Senate floor in support of the bill Wednesday, Sen. Susan Collins (R-Maine) said it was time to “remove the cloud” over same-sex and interracial couples who might worry that their marriage would not be recognized in another state.
“Some have said that this bill is unnecessary because there is little risk that the right to have a same-sex or interracial marriage recognized by the government will be overturned by the Supreme Court,” Collins said. “Regardless of one’s views on that possibility, there is still value in ensuring that our federal laws reflect that same-sex and interracial couples have the right to have their marriages recognized regardless of where they live in this country.”
Collins also noted several churches and religious groups had come out in support of the bill, including the Church of Jesus Christ of Latter-day Saints, the Seventh-day Adventists, and the National Association of Evangelicals.
Collins was part of a bipartisan group that had been trying to find 10 Republican votes necessary for the bill to pass in September, and who ultimately negotiated a delay on the vote until after the midterm elections. The group — which also included Sens. Tammy Baldwin (D-Wis.), Rob Portman (R-Ohio), Kyrsten Sinema (D-Ariz.), and Thom Tillis (R-N.C.) — also worked on an amendment to the bill to allay some Republicans’ concerns about protecting religious liberty.
Among other things, the amendment clarifies that the bill does not authorize the federal government to recognize polygamous marriages and confirms that nonprofit religious organizations would not be required to provide “any services, facilities, or goods for the solemnization or celebration of a marriage.”
Portman noted Wednesday that the bill would not require any state to perform same-sex marriages if it chooses not to.
“As you can see, the bill is very narrow,” the Ohio Republican said. “It’s constitutional and it does not infringe on state sovereignty.”
Among the Republicans voting to advance the bill was Sen. Mitt Romney (R-Utah), the GOP’s presidential nominee in 2012.
“While I believe in traditional marriage, Obergefell is and has been the law of the land upon which LGBTQ individuals have relied,” Romney said in a statement. “This legislation provides certainty to many LGBTQ Americans, and it signals that Congress — and I — esteem and love all of our fellow Americans equally.”
If the Senate passes the bill with the bipartisan amendment, the amended version would return to the House for another vote before it could go to President Biden to sign into law.
In his June concurrence with the decision to overturn Roe, Supreme Court Justice Clarence Thomas wrote that the high court should also examine previous rulings that legalized the right of married couples to buy and use contraception without government restriction (Griswold v. Connecticut), same-sex relationships (Lawrence v. Texas) and marriage equality (Obergefell v. Hodges).
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. “Because any substantive due process decision is ‘demonstrably erroneous’ … we must ‘correct the error’ established in those precedents.”
“After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated,” he added.
Thomas’s opinion set off alarm bells among proponents of marriage equality, particularly with the prospect of a Republican-controlled Congress after the midterm elections. However, Republicans drastically underperformed expectations last Tuesday, and Democrats will retain their majority in the Senate. A Dec. 6 runoff in Georgia — between Sen. Raphael G. Warnock (D) and Republican Herschel Walker — will determine whether Democrats gain a 51st Senate seat.
Republicans are expected to win a narrow majority in the House, though several races remain undecided.