The Respect for Marriage Act now returns to the Democratic-led US House of Representatives for a final vote.
The United States Senate has voted 61 to 36 to pass the Respect for Marriage Act, a bill that would enshrine protections for same-sex and interracial marriages in federal law.
Twelve Republicans joined the 49 Democrats present in supporting the landmark piece of legislation, which prohibits states from denying “out-of-state marriages on the basis of sex, race, ethnicity or national origin”.
The bill also “repeals and replaces” any federal language that defines marriage as between individuals of the opposite sex.
Tuesday’s bipartisan victory comes in the final weeks of the Democratic-controlled Congress. The bill now returns to the House of Representatives, which is slated to shift to Republican leadership when the 118th Congress is sworn in on January 3.
In a speech minutes before the vote, Senate Majority Leader Chuck Schumer, a Democrat, applauded the bill’s bipartisan support, saying he planned to call his daughter and her wife to celebrate.
“For millions of Americans, today is a very good day. An important day. A day that’s been a long time in coming,” Schumer said.
“The long but inexorable march towards greater equality advances forward. By passing this bill, the Senate is sending a message that every American needs to hear: No matter who you are or who you love, you too deserve dignity and equal treatment under the law.”
But in the hours before Tuesday’s vote, Senate Republicans like James Lankford of Oklahoma raised fears the Respect for Marriage Act would curtain religious freedom in the US and proposed additional amendments to the bill.
“Is today about respecting the rights of all, or is it about silencing some and respecting others?” Lankford said.
A Gallup poll showed that support for same-sex marriage in the US had hit a record high of 70 percent in 2021. It was also the first time Gallup recorded a majority of Republicans in favour of same-sex marriage, at a rate of 55 percent.
“Current federal law does not reflect the will or beliefs of the American people in this regard,” Ohio Republican Rob Portman said in a speech in support of the Respect for Marriage Act on November 16. “The current statute allows states and governments to refuse valid same-sex marriages.”
Since 2015, the Supreme Court decision Obergefell v Hodges has guaranteed the right for same-sex couples to marry. But laws like the 1996 Defense of Marriage Act — which defined marriage as between “one man and one woman” and denied federal recognition to same-sex couples — remained on the books, though unenforceable.
While the Respect for Marriage Act would not codify the Obergefell ruling, it would repeal laws like the Defense of Marriage Act. It would also mandate that states recognise all marriages that were legal where they were performed and protect current same-sex unions.
The current push to pass the Respect for Marriage Act came in the wake of June’s Supreme Court decision in Dobbs v Jackson Women’s Health Organization, which overturned a half-century of protections for abortion access.
In a Senate session on Monday, Oregon Democrat Ron Wyden pointed to the Dobbs decision as motivation to vote in favour of the bill.
“Some members of this body have questioned why we need to pass this bill when marriage equality is the law of the land,” Wyden said. “The answer is pretty straightforward. The Dobbs ruling, which overturned Roe versus Wade, showed that the Senate cannot take any modern legal precedent for granted.”
The majority opinion in the Dobbs decision, written by Justice Samuel Alito, denied that the ruling would affect court precedents outside of abortion.
But a concurring opinion, submitted by Justice Clarence Thomas, suggested the court should “reconsider all of this Court’s substantive due process precedents”, naming the 2015 Obergefell decision among them.
On July 19, just weeks following the Dobbs decision, House Democrats passed the Respect for Marriage Act with the support of 47 Republicans – a surprise bipartisan vote that signalled an apparent split in Republicans’ stance towards same-sex marriage.
Top House Republicans, including Minority Leader Kevin McCarthy and Whip Steve Scalise, opposed the bill, while the number-three Republican, New York’s Elise Stefanik, voted in favour.
After passing the House, the Respect for Marriage Act faced steeper odds in the evenly split Senate, where 60 votes were needed to overcome a filibuster.
Senate Democrats delayed a vote on the bill until after the US held its midterm elections in an effort to relieve pressure on Republicans and garner greater bipartisan support. Republicans pushed for multiple amendments to be made to the bill on the grounds of protecting religious liberty.
The bill that passed on Tuesday included language that explicitly prohibited polygamous marriages and ensured the bill cannot be used to target or deny government benefits, including tax-exempt status, based on religious belief. In a test vote on Monday, 12 Republicans joined the Senate Democrats in voting in favour of the amended bill.
Religious groups also offered support for the bill, including the Church of Jesus Christ of Latter-day Saints (LDS), which applauded the bill for its “religious freedom protections while respecting the law and preserving the rights of our LGBTQ brothers and sisters”.
“It’s notable that the Senate is having this debate to begin with,” Schumer said on Monday. “A decade ago, it would have strained all of our imaginations to envision both sides talking about protecting the rights of same-sex married couples.”
But Tuesday’s vote was preceded by further proposed amendments to the bill, from Senators including Lankford and Florida’s Marco Rubio.
Portman, a fellow Republican, urged his party on Tuesday to support the Respect for Marriage Act. He dismissed as “false” concerns the bill would make “institutions and individuals trying to live according to their sincerely held beliefs” vulnerable to litigation.
The bill, Portman said, “reflects a national policy that respects diverse beliefs about the role of gender and marriage, while also protecting the rights of same-sex marriage couples”.
Another Republican, Wyoming’s Cynthia Lummis, told the Senate that, while she believes “God’s word as to the definition of marriage”, she would support the Respect for Marriage Act.
“These are turbulent times for our nation,” Lummis said, citing an increase in heated rhetoric. “We do well by taking this step, not embracing or validating each other’s devoutly held views, but by the simple act of tolerating them.”
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