The U.S. Senate is set to take a procedural vote Wednesday on the Respect for Marriage Act, which would write marriage equality into federal law and protect it from Supreme Court action.
The House of Representatives has already passed the bill, but it has not come to a vote in the Senate. Wednesday’s vote isn’t for final passage, but it would allow the measure to move forward, and it would take the vote of 60 senators due to the chamber’s rules, meaning it would need the support of 10 Republican senators in addition to all 50 Democrats and independents.
“Clearing the 60-vote threshold allows debate to start on the measure and puts the legislation closer to final passage,” CBS News explains.
It may also take another vote to close debate and move to a final vote. However, if the 60-vote threshold is reached once, senators may not call for a vote to end debate and will simply move to a vote for final passage, which would take only a simple majority.
A bipartisan group of senators Monday announced an amendment to the bill to allay concerns that it would threaten religious freedom. The amendment confirms that no nonprofit religious organization would have to provide goods, services, or facilities for wedding ceremonies or receptions, and it clarifies that the federal government would not have to recognize polygamous marriages. If the Senate passes the bill with the amendment, it would have to go back to the House for another vote, as it would be a new version.
Here's what the act would do, explained with the help of the Human Rights Campaign. It would codify federal marriage equality by guaranteeing the federal rights, benefits, and obligations of marriages in the federal code; repeal the discriminatory Defense of Marriage Act; and affirm that public acts, records, and proceedings should be recognized by all states. By doing so, it protects the status quo that exists following the U.S. Supreme Court’s landmark rulings in Loving v. Virginia (1967), Windsor v. United States (2013), and Obergefell v. Hodges (2015) — decisions that together made equal marriage the law of the land.
Justice Clarence Thomas, one of the most conservative members of the court, has called for the overturning of Obergefell. He did so in his concurring opinion when the court overturned Roe v. Wade in its Dobbs v. Jackson Women’s Health Organization ruling. For Obergefell to be reversed, it would take a marriage equality case getting to the Supreme Court, and none is on its way right now, but it’s still a concern.
The U.S. Constitution grants the states — not Congress — the power to determine who may marry in that state, subject to federal constitutional requirements including equal protection of the laws. In the Respect for Marriage Act, Congress is doing all that it can do to buttress the portions of the Obergefell and Windsor rulings that fall within its purview.
“The essential point is this: [DOMA] is a discriminatory, offensive law that resulted in too many couples being denied access to the more than 1,100 federal benefits associated with marriage,” the HRC notes. “The Respect for Marriage Act is a bipartisan repudiation of DOMA’s discrimination, and signals that at least for Congress, fights about marriage equality are best left in the dustbin of history. Congress is taking decisive, bipartisan action to repeal this offensive language and ensure that even if Loving, Windsor and Obergefell were overturned that the federal government would not itself engage in discrimination again.”
DOMA, passed in 1996, allowed states to refuse to recognize valid civil marriages of same-sex couples that were performed in other states. It also denied federal recognition of same-sex marriages, therefore excluding these couples from all federal benefits and protections.
DOMA was rendered unenforceable by the Windsor ruling, which invalidated the portion on federal recognition, and the Obergefell ruling, which invalidated the rest. But it remains on the books.
“DOMA is a stain on our nation, enshrining the belief that LGBTQ+ people were unworthy of marriage equality,” the HRC states.
Under the Respect for Marriage Act, “if Obergefell or Loving were to fall, and some states decided to no longer marry same-sex or interracial couples, the federal government would continue to recognize marriages legally entered into in other states,” the organization explains.
Also, the act would assure that “marriages, adoption orders, divorce decrees, and other public acts must be honored by all states consistent with the Full Faith and Credit clause of the U.S. Constitution. This adds additional protection for married couples and families,” it continues. “Legally married couples who experience a denial of their legal rights should be able to seek support from the U.S. Attorney General rather than having to clog the court system litigating incident by incident.”
Many states retain bans on same-sex marriage, but as long as the Obergefell ruling remains in effect, these cannot be enforced. “If Obergefell was to be repealed without the [Respect for Marriage Act] in effect, we would return to the pre-2015 reality where same-sex marriages would cease to exist the moment a person crossed into a state that didn’t recognize their marriage as legal; with the RMA in effect, on the other hand, that same person could travel through the country freely and still enjoy the legal status conferred by the state where the marriage took place,” the HRC notes.
Loving v. Virginia, a landmark decision from the civil rights era, overturned all state prohibitions on interracial marriage. Sixteen states across the U.S. still had bans on interracial marriage on the books at the time of the ruling. The Loving ruling was one of the precedents cited in the Supreme Court’s Obergefell decision.