Senate Passes Same-Sex Marriage Bill

The Senate on Tuesday passed the Respect for Marriage Act, a measure that would provide federal protections for same-sex marriages.

The upper chamber voted 61-36 to approve the bill. It is expected to clear a final vote in the House next week, after which it will head to President Biden’s desk for final approval.

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.

The bill is the result of a months-long bipartisan effort by Senators Susan Collins (R., Maine), Tammy Baldwin (D., Wis.), Rob Portman (R., Ohio), Kyrsten Sinema (D., Ariz.) and Thom Tillis (R., N.C.), who worked to secure the 10 Republican votes needed to pass the bill. 

On Tuesday, the Senate adopted an amendment crafted by Collins and Baldwin in an effort to assuage Republican concerns about religious liberty.

“Through bipartisan collaboration, we’ve crafted commonsense language to confirm that this legislation fully respects and protects Americans’ religious liberties and diverse beliefs, while leaving intact the core mission of the legislation to protect marriage equality,” the bipartisan group of senators said in a joint statement.

The revised legislation ensures that nonprofit religious organizations won’t be forced to help facilitate 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.

Meanwhile, Senator Mike Lee (R., Utah) has said the current religious-liberty protections in the bill were “severely anemic and largely illusory” and said the new amendment is “insufficient.”

Lee and Senators Marco Rubio (R., Fla.) and James Lankford (R., Okla.) proposed their own amendments to the bill in an effort to add stronger religious liberty protections, though all failed to pass the threshold needed to advance.

On Monday, Lee said in a statement: “Under the RFMA’s current language, many religious schools, faith-based organizations, and other non-profit entities adhering to traditional views of marriage would be at risk of losing tax-exempt status and access to a wide range of federal programs. Many small businesses would also be affected. For example, wedding vendors (including kosher caterers) would be subjected to endless lawsuits and harassment based solely on their beliefs.”

He added: “Without my amendment, the RFMA would only exacerbate and nationalize the discriminatory policies already in place in Illinois, Massachusetts, California, and the District of Columbia, where religious adoption agencies are essentially shut down unless they recognize same-sex marriage. It would threaten the work of the U.S. Conference of Catholic Bishops to provide foster care to unaccompanied alien children and place religious adoption agencies at risk of shutting down.”

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