November 29

By Kaia Hubbard

The Senate punctuated a divisive and dizzying lame-duck session with the passage of a bipartisan bill to codify federal protections for same-sex and interracial marriages on Tuesday – a major step to safeguard the unions if the rights go the way of abortion at the Supreme Court.

“For millions of Americans, today is a very good day – an important day, a day that’s been a long time in coming,” Senate Majority Leader Chuck Schumer of New York said on Tuesday. “Today, the inexorable march toward greater equality advances forward.”

Twelve Republican senators – Roy Blunt of Missouri, Richard Burr of North Carolina, Shelley Capito of West Virginia, Susan Collins of Maine, Joni Ernst of Iowa, Cynthia Lummis of Wyoming, Lisa Murkowski of Alaska, Robert Portman of Ohio, Mitt Romney of Utah, Dan Sullivan of Alaska, Thom Tillis of North Carolina, and Todd Young of Indiana – joined Democrats to pass the bill in a 61-36 vote that marks the largest hurdle to the legislation and a historic moment.

Dubbed the Respect for Marriage Act, the bill would create federal protections for marriages between same-sex couples, including a provision that would require states to recognize marriages performed in other states, while repealing the 1996 Defense of Marriage Act that defines marriage as between a man and a woman. But the bill – despite being a flex of power not often seen from the legislative branch over the judicial branch – would not require that all states legalize same-sex marriage in the event that the Supreme Court rolled back its decision that did so nationwide.

Tuesday’s long-awaited vote comes months after nearly 50 Republicans joined House Democrats to pass the bill in July in the weeks following the Supreme Court’s decision to overturn Roe v. Wade, when Justice Clarence Thomas suggested in a concurring opinion an openness to reconsidering related landmark cases, spurring a push for lawmakers to preemptively protect the related rights.

But Justice Samuel Alito, who authored the majority opinion in Dobbs v. Jackson Women’s Health Organization, said the decision did not have implications beyond abortion, saying that the decision “concerns the constitutional right to abortion and no other right.”

Even so, Democrats have pointed to Thomas’ apparent willingness to revisit the precedents that protect contraception and same-sex marriage. The conservative justice wrote in his concurring opinion that, although he agrees that nothing in the court’s opinion should cast doubt on precedents beyond abortion, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” the cases that established rights to contraception, intimacy between same-sex couples and marriage equality.

“It’s a scary, but necessary, acknowledgment that, despite all the progress we’ve made, the constitutional right to same-sex marriage is not even a decade old and exists only by the virtue of a very narrow 5-4 Supreme Court decision,” Schumer said ahead of the bill’s passage on Tuesday. “And we all know the court has changed since that decision. As we have already seen this year, what the court has decided in the past can be easily taken away in the future.”

After the House passed the bill, Schumer was under pressure from some progressives to move things forward, even without the necessary Republican votes secured, in an effort to get them on the record ahead of the midterms. But Schumer held back the vote until after midterm elections, seemingly hoping to ease pressure on sympathetic GOP lawmakers and ultimately get the bill through – a strategy that appears to have worked despite some skepticism at the time.

“This bill was too important to risk failure,” Schumer said on Tuesday, while noting that the bill is personal to him and at times becoming emotional. “Today, we have vindication – the wait was well worth it.”

The support from some Republican senators, including some from deep red states, is perhaps evidence of how support for same-sex marriage has changed in recent years. Indeed, support for legal same-sex marriage reached a new high of 71% of Americans this year, according to Gallup polling, up from around 60% when the Supreme Court opinion was released in 2015 and just 42% in 2004 after the Supreme Court decision that struck down sodomy laws and as Massachusetts became the first state to legalize same-sex marriage.

“Strange feeling, to see something as basic and as personal as the durability of your marriage come up for debate on the Senate floor,” Transportation Secretary Pete Buttigieg wrote in a tweet on Tuesday.

Even among some Republicans who may otherwise oppose the unions, Americans’ support for the issue seems to have informed their willingness to vote to protect a right to same-sex marriage.

“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 recent statement.

Romney and others have also pointed to the legislations protections for religious liberty, which includes language that makes clear that the federal government is not required to protect polygamous marriages and that religious organizations will not be required to perform same-sex marriages. Collins, another sponsor of the bill, called the legislation an “important step forward” for religious liberty as well as the “dignity” of all Americans.

Still, some Republicans have argued that the bill does not go far enough when it comes to religious liberties, pushing for a number of amendments.

Democratic Sen. Tammy Baldwin of Wisconsin, one of the bill’s sponsors and the first openly gay senator, said the langage of the bill “leaves intact religious liberties supported in our Constitution and federal law.”

“These amendments would upend the months of good-faith negotiations and they would disrupt our carefully crafted and bipartisan compromise and change the mission of our very straightforward bill,” Baldwin said ahead of the bill’s passage.

Garnering enough Republican support to reach a 60-vote threshold in the Senate was the most significant hurdle for the legislation, which now heads back to the House, where it passed earlier this year, to sign off on changes before it can head to the desk of President Joe Biden, who has pledged to sign the legislation into law.