Law to protect same-sex marriage and religious freedom clears final Senate hurdle

A rainbow flag in support of gay rights flies in front of the Supreme Court.
A rainbow flag in support of gay rights flies in front of the Supreme Court in 2015. (Astrid Riecken for the Washington Post via Getty Images)
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The U.S. Senate on Tuesday gave its final approval to a bill that enhances legal protections for same-sex marriages. It passed with the support of a dozen Republicans who said it also protects rights of conscience and religious liberty for conservatives.

The Respect for Marriage Act passed 61-36 and will next go to the House, which has already passed it once but needs to do so again to approve changes made in the Senate, and then to President Biden’s desk for his signature before it becomes law.

A handful of amendments were voted on before the Senate held its final vote Tuesday, but none passed. One of the bill’s most outspoken critics, Sen. Mike Lee, R-Utah, offered an amendment that sought to widen religious freedom provisions, but did so after opposing the bill for most of the last several months. That provision failed to reach the 60-vote threshold needed for most legislation under the filibuster, a procedure used to ensure that a supermajority supports controversial bills.

Democrats sought to pass the bill to reassure same-sex couples that even if the Supreme Court overturned the 2015 decision Obergefell vs. Hodges, which legalized same-sex marriage, their unions and the corresponding benefits would remain legally recognized.

Supreme Court plaintiff Jim Obergefell, holding a rainbow flag, rides in a convertible in the San Francisco Gay Pride Parade.
Supreme Court plaintiff Jim Obergefell rides in the San Francisco Gay Pride Parade in 2015. (Max Whittaker/Getty Images)

Concern about the status of the Obergefell decision grew out of a concurrence written by Supreme Court Justice Clarence Thomas this year in which he raised the possibility of overturning it. There is no indication, however, that any other justices agree with him.

But advocates for the bill, who include gay rights groups as well as major conservative religious organizations, have described it as a compromise meant to assure both sides that their worst-case-scenario fears are off the table.

Senate Majority Leader Chuck Schumer, D-N.Y., said in remarks on the Senate floor before the vote that the bill was “deeply personal for many of us in this chamber.” His daughter Alison married Elizabeth Weiland in 2018.

“It’s personal for me, of course. It’s personal to many of my colleagues and their staff and their families. And while we still have a few more votes to take, today is certainly an occasion for joy and relief,” Schumer said.

A dozen Republican senators supported the bill after months of bipartisan negotiations in which provisions were added that give protections to religious conservatives who believe same-sex marriage is contrary to their faith teachings.

The negotiations were led on the Republican side by Sen. Rob Portman of Ohio, who opposed same-sex marriage until 2013. After his son Will told him during his time at college that he was gay, the senator publicly changed his position. Portman is also retiring from the Senate and will not face reelection.

On the Democratic side, Sen. Tammy Baldwin of Wisconsin — the first openly gay woman elected to Congress — led the negotiations, along with Sen. Kyrsten Sinema, D-Ariz., the first open bisexual elected to Congress. On the Republican side, Sens. Susan Collins of Maine and Thom Tillis of North Carolina took the lead with Portman.

Sen. Tammy Baldwin, D-Wis., with Senate Majority Leader Chuck Schumer at her side, stands at a lectern and talks about the Respect for Marriage Act.
Sen. Tammy Baldwin, D-Wis., with Senate Majority Leader Chuck Schumer at her side, talks about the Respect for Marriage Act at the Capitol on Nov. 15. (J. Scott Applewhite/AP)

Schumer considered forcing a vote on the bill earlier this year, before the midterm elections, but the bipartisan working group of senators told him the chances of getting 60 votes to pass it would be much greater after the elections.

“Today we have vindication. The wait was well worth it,” Schumer said.

The only holdouts expressing outright opposition have been a subset of religious conservatives who say they do not want anything in the law to recognize same-sex marriage and who argue that the bill will be used to persecute those who disagree.

The law would ensure that any marriage license granted to a same-sex couple is legally valid, even if they live in a state whose law does not recognize it. In other words, if Obergefell were overturned, the law would require states where gay marriage is not enshrined in law to recognize those licenses.

The Respect for Marriage Act repeals a provision in the 1996 Defense of Marriage Act that allowed states to discriminate against same-sex couples, and says that “an individual shall be considered married if that individual’s marriage is between 2 individuals and is valid in the State where the marriage was entered into.”

This provision is also meant to protect interracial couples from the prospect that the Supreme Court might some day overturn the prohibition on discriminating against couples of different races. That scenario was also raised by Thomas in his written opinion this summer.

Supreme Court Justice Clarence Thomas and his wife, Ginni, arrive for a state dinner at the White House.
Supreme Court Justice Clarence Thomas and his wife, Ginni, arrive for a state dinner at the White House in 2019. (Patrick Semansky/AP)

Conservatives, meanwhile, have worried since Obergefell that the legalization of same-sex marriage would be used to punish them for their long-held views.

The Respect for Marriage Act would enshrine in law language similar to that included in the Obergefell decision, stating, “Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.”

Religious liberty advocates argue that this language is a step toward deescalating the cultural and legal conflicts between gay rights advocates and religious conservatives, by decoupling conservative views on sexuality and marriage from comparisons to racial animus or discrimination.

But other conservative legal scholars argued Tuesday that the law does the opposite.

The bill also states it is consistent with the First Amendment for “nonprofit religious organizations” to be able to refuse “services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage” and that the law cannot be used to deprive religious organizations of tax exemptions or other such privileges under the law.

“Because we conclude that the bill’s protections are important and that any new risks it creates are quite limited, we see it as an advance for religious liberty,” said four conservative legal scholars in a letter supporting the bill.