The bipartisan vote of 61-36 sends the bill back to the US House of Representatives, where lawmakers expect to give it their final stamp of approval soon before forwarding it to President Joe Biden. The House of Representatives voted 267 to 157 to pass the original bill in July, but will have to vote again after adding a bipartisan group of senators to protect religious freedom.
Wearing the same tie he wore to his daughter’s wedding Tuesday, Senate Majority Leader Chuck Schumer, DN.Y., recounted a conversation he had with his daughter and her wife following the death of the former Supreme Court Justice of the USA, Ruth Bader Ginsburg, had led.
“I remember that awful feeling at the dinner table, and I clearly remember the question my daughter and her wife asked, ‘Could our right to marry be reversed?'” Schumer said.
“It’s a frightening but necessary recognition that despite all the progress we’ve made, the constitutional right to same-sex marriage isn’t even a decade old and only exists because of a very narrow 5-4 Supreme Court decision.” Schumer continued. “And we all know that the court has changed since that decision.”
Retired Senator Roy Blunt from Missouri, Retired Senator Richard Burr from North Carolina, Shelley Moore Capito from West Virginia, Susan Collins from Maine, Joni Ernst from Iowa, Cynthia Lummis from Wyoming, Lisa Murkowski from Alaska, Retired Senator from Ohio Rob Portman, Mitt Romney of Utah, Dan Sullivan of Alaska, Senator Thom Tillis of North Carolina and Todd Young of Indiana voted in favor of the bill.
Repeal of the Marriage Protection Act
The legislation would repeal the 1996 law known as the Defense of Marriage Act, which defined marriage as the union of a man and a woman. Federal law also allowed states to ignore same-sex partnerships, which were legally conducted in other states.
It would ensure the federal government continued to recognize these unions if the U.S. Supreme Court overturned the cases that legalized same-sex and interracial marriages, a move needed for hundreds of federal benefits, including Social Security and veterans’ benefits.
The bill, known as the Respect for Marriage Act, would require states to recognize same-sex and interracial marriages performed in states that keep unions legal, although it would not require states to legalize same-sex or interracial marriages in the United States The Supreme Court should set aside these cases.
Cathryn Oakley, legislative director and lead attorney for the Human Rights Campaign, said during a briefing in mid-November that the law is a “very important” piece of legislation that LGBTQ rights advocates have been pushing Congress to pass for years.
She also sought to clear up misconceptions that the legislation would allow two people to enter into same-sex or interracial marriages anywhere in the country if the US Supreme Court were to overturn those cases.
“Congress has done everything it can responsibly do in this bill,” Oakley said. “What they cannot responsibly do is tell states they must marry two people of the same sex.”
Oakley said U.S. lawmakers are “taking the maximum responsible action they can at this time,” within the powers they have within the U.S. Constitution.
State bans
More than 30 states have constitutional amendments, state statutes, or both that prohibit same-sex marriages, according to the Congressional Research Service.
Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Carolina, Ohio, Oregon, South Dakota, Tennessee, Virginia, and Wisconsin are among the states with state constitutional amendments prohibiting it would same-sex marriages.
Indiana is among the states with laws that would prohibit same-sex marriages. The Iowa Supreme Court overturned Iowa’s ban in April 2009, legalizing same-sex marriage.
In 2014, a federal judge overturned Pennsylvania state statute banning same-sex marriages. The next day, then-Gov. Tom Corbett, a Republican, said he will not appeal U.S. District Judge John E. Jones’ ruling. The decision made the Commonwealth the 19th state to give same-sex couples the right to marry, the New York Times and other media reported at the time. According to the Congressional Research Service, the statute remains on the books.
These state laws and constitutional provisions are currently unenforceable following the 2015 US Supreme Court ruling recognizing same-sex marriages as constitutionally protected. But they could come back into effect if the judges overturn this case. States that still have laws prohibiting interracial marriages may change those laws under Loving v. Virginia of 1967 not enforce.
Missouri Secretary of State Jay Ashcroft criticized his state’s top senator, Blunt, for voting in favor of the bill.
Ashcroft said during an interview with The Missouri Independent that he tried to call Blunt to campaign against the bill but couldn’t reach him, so he sent a letter instead.
The law, which the US Senate passed on Tuesday, was spurred by the US Supreme Court’s decision this summer to overturn the two cases that kept abortion legal nationwide and protected as a constitutional right for nearly half a century.
Judge Clarence Thomas raised the concern when, in his concurring opinion in the abortion case, he wrote that the judges “should consider all substantive precedents of the trial” that contained similar legal considerations to the abortion cases.
Thomas listed Griswold v. Connecticut, where established couples have a constitutional right to choose whether and how to use birth control; Obergefell v. Hodges, the 2015 case that legalized same-sex marriage; and Lawrence V. Texas repealing state anti-sodomy laws as three cases he specifically thought the court should reconsider.
LGBTQ rights advocates immediately urged Congress to ensure future Supreme Court rulings would not completely erode marriage rights.
Republicans on board
The U.S. House of Representatives approved the law in July, and the U.S. Senate was on track to vote on the Marriage Equality Act before the November midterm elections, but Schumer held off at the request of a bipartisan group of senators supporting the Adding religious freedom language and who were working to get at least 10 Republicans on board to pass the chamber’s legislative filibuster.
Sens. Tammy Baldwin, a Wisconsin Democrat; Collins; portman; Kyrsten Sinema, an Arizona Democrat; and Tillis wrote at the time that they were “confident that when our legislation comes to the Senate vote, we will have the bipartisan support to pass the bill.”
The protections of religious liberty now included in the bill would “protect all protections of religious liberty and conscience available under the Constitution or federal law,” according to a summary of the amendments.
The legislation would bar religious organizations, certain religious non-profit organizations and their employees from “providing services, accommodation, benefits, facilities, goods or privileges for the celebration or celebration of a marriage.”
It would prevent changes in tax-exempt status because “the eligibility of a church, university or other non-profit organization for tax-exemption is unrelated to marriage, so their status would not be affected by this legislation,” the abstract said.
The bill made its first Senate vote in mid-November when 12 GOP senators joined Democrats in overcoming the legislative filibuster.
GOP Changes
Before the Senate approved the bill on Tuesday, lawmakers voted three Republican amendments.
Senators voted 48 to 49 to reject a proposal by Utah Senator Mike Lee that would have barred the federal government from taking “any discriminatory action,” such as eliminating a tax benefit, for anyone who “conforms to… a sincere religious belief or moral belief that marriage is “between a man and a woman or between two persons,” as recognized by federal law.
Lee argued before the vote that lawmakers “would be doing all Americans a disservice if we increase the rights of one group at the expense of another.”
The Senate voted 45 to 52 to reject a proposal by Oklahoma Senator James Lankford that would have changed who would be required to comply with the law from a person acting under the “color of state law” to a state territory or a tribe.
Lankford said Tuesday that the “color of state law” language could refer to any organization that a state contracts with to perform a governmental function, such as the United States. B. private prisons, adoption agencies, foster homes or homeless shelters.
Lankford’s amendment would also have removed a section of the bill that would allow individuals “harmed” by breaking the law to sue. Lankford said the legislation does not define what “damaged” would mean.
Florida Senator Marco Rubio’s amendment to remove the section of the bill that would allow anyone “victims of a violation of the law” to sue in a US district court was defeated by a vote of 45 to 52.
Rubio argued in a written statement that while the legislation included language that would “protect non-profit organizations whose ‘principal purpose’ is ‘the study, practice or promotion of religion,’ it would not protect other religious organizations.”
Baldwin urged senators to reject the three amendments ahead of the vote, saying they would “turn upside down months of good faith negotiations and upset our carefully crafted bipartisan compromise.”
The language of religious freedom added to the bill, Baldwin said, ensures protection “of the religious freedoms afforded under our Constitution and federal law.”
“We are not pushing for this legislation to make history,” she said. “We do this to make a difference for millions and millions of Americans.
Capital Star Editor John L. Micek provided additional coverage.
