Senate Advances Bill to Protect Same-Sex Marriage

The Respect for Marriage Act, a measure that would provide federal protections for same-sex and interracial marriages, cleared a key procedural hurdle on Wednesday, with senators voting 62 to 37 to end debate on the measure and advance it.

All 50 members of the Democratic caucus and 12 Republicans voted to advance the bill.

“Today, the Senate is taking a truly bold step forward in the march towards greater justice, greater equality, by advancing the Respect for Marriage Act,” Senate Majority Leader Chuck Schumer (D-N.Y.) said ahead of 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.”

Democrats have said the bill is necessary after conservative Supreme Court Justice Clarence Thomas wrote in his concurring opinion in Dobbs v. Jackson Women’s Health Organization earlier this year that the Court “should reconsider” its decisions in Griswold v. ConnecticutLawrence v. Texas, and Obergefell v. Hodges, which established a right to contraception, privacy in the bedroom, and same-sex marriage, respectively.

Thomas’s reasoning was that the Court’s majority found that a right to abortion was not a form of “liberty” protected by the due-process clause of the 14th Amendment to the Constitution. He said the Court therefore had a duty to “correct the error” in the other three precedents, which relied upon the same legal reasoning as Roe. He wrote that after “overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions” protected the rights established in the three cases.

Justice Samuel Alito wrote in the Court’s majority opinion in Dobbs that the ruling does not affect issues other than abortion.

A bipartisan group of senators — including Senators Susan Collins (R., Maine), Tammy Baldwin (D., Wis.), Rob Portman (R., Ohio), Kyrsten Sinema (D., Ariz.) and Thom Tillis (R., N.C.) — worked to secure the 10 Republican votes needed to pass the bill. The group called to delay the vote until after the midterms to secure enough support after the House approved the bill in July with support from 47 Republicans.

“Marriage equality is too important an issue to risk failure,” Schumer said Wednesday. “So I made the choice to trust the members who worked so hard on this legislation and wait a little bit longer in order to give the bipartisan process a chance to play out.”

The group also crafted an amendment to the bill to assuage Republican concerns about religious liberty. The revised legislation endures that nonprofit religious organizations won’t be forced to help facilitate or endorse same-sex marriage.

Any religious organization, according to the language of the text, “shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.” The bill also excludes polygamous marriage from protection, specifically stating that the union must be between “two” individuals.

“As you can see, the bill is really very narrow,” Portman said Wednesday, noting the measure would not require any state to perform same-sex marriages if it chooses not to. “It’s constitutional and it does not infringe on state sovereignty.”

Senator Mitt Romney (R., Utah) was among a handful of Republicans to support the bill.

“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 amended bill passes the Senate, it will return to the House for another vote before it heads to President Biden’s desk for final approval.

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