Senate advances bipartisan bill to codify same-sex marriage rights

WASHINGTON – The Senate on Thursday cleared the way for historic legislation to enshrine federal protections for same-sex marriage after a dozen Republicans joined Democratic senators to back the bill, setting up a final vote when Congress returns from its Thanksgiving recess.

Senate Majority Leader Chuck Schumer, D-N.Y., tried to expedite the process to hold a final vote before lawmakers left the Capitol, but at least one GOP senator objected, delaying the final vote.

The Supreme Court ruled narrowly to establish a federal right to same-sex marriage in 2015, but a member of the court’s conservative supermajority suggested earlier this year that decision could be overturned, prompting a push in Congress to codify the right in law. The Respect for Marriage Act would also establish a nationwide right to interracial marriage, which was made legal by a 1967 Supreme Court ruling but is also not explicitly protected by the Constitution.

Sen. Maria Cantwell, one of the bill’s 43 cosponsors, hailed the legislation in a speech on the Senate floor Wednesday when senators took a procedural vote that assured the bill’s opponents couldn’t use a filibuster to block it.

“These are strong protections that are long overdue,” the Washington Democrat said. “I understand some of my colleagues do not see a need for passing this legislation, but I would ask them to stand in the shoes of someone in a marriage that is in danger of being dissolved overnight by a court decision.”

The bill wouldn’t require states to issue licenses for same-sex marriages but would require them to recognize marriages performed in other states, regardless of “sex, race, ethnicity, or national origin.” It would also repeal the 1996 Defense of Marriage Act, which explicitly defined marriage as between a man and a woman. Once signed into law by President Biden, it would allow the attorney general or any person harmed by a violation of the law to file a civil lawsuit.

The vote, which took place late Thursday night before senators left for the Thanksgiving recess, marked the culmination of a rapid shift in American society, just a decade after then-President Barack Obama announced his support for same-sex marriage when the Democrat opposed such a right during his first run for the White House.

In a procedural vote Wednesday, 12 GOP senators voted along with all 50 Democrats to advance the bill. The House passed a different version of the bill in July with 47 Republicans and all 220 Democrats voting in favor.

To draw the 10 Republican votes needed to pass the Senate, a bipartisan group of senators introduced an amendment meant to address concerns about religious liberty. As amended, the bill does not require nonprofit religious organizations to provide “any services, facilities, or goods” for a same-sex marriage and ensures that refusing to recognize same-sex marriage won’t affect the tax-exempt eligibility of organizations such as churches or universities.

Those changes didn’t go far enough for most Senate Republicans, including Sens. Mike Crapo and Jim Risch of Idaho. In a statement, Risch said he supports a 2006 amendment to the state constitution – which a federal judge overturned in 2014 – that prohibits same-sex marriage.

“Regarding same-sex marriage, Idaho has a constitutional amendment on the books defining marriage as its voters determined, and that is the standard I support,” Risch said. “The federal government has no business attempting to direct our views on this matter. In addition, this bill lacks crucial religious liberty protections for individuals, schools, adoption agencies and faith-based organizations that hold valid religious views that disagree with this mandate.”

Risch added that interracial marriage “is protected by the United States Constitution,” and that no state is trying to overturn that right. The right to interracial marriage, based on the Supreme Court’s 1967 ruling in Loving v. Virginia, is what legal scholars call an “unenumerated right,” one that is not explicitly spelled out in the Constitution.

In a concurring opinion in the court’s June decision that overturned a similarly justified right to abortion access, Justice Clarence Thomas wrote that the court should reconsider rights to same-sex marriage and contraception that aren’t explicitly enshrined in the Constitution. But Thomas, who is in an interracial marriage, notably did not mention Loving v. Virginia as a precedent the court should revisit, despite it being based on similar legal reasoning.

Crapo declined to comment on the bill Wednesday, but he explained his opposition to The Idaho Statesman in October.

“This bill would federalize the law of marriage, mandating that every state follow every other state’s marriage laws, establishing private rights of action and Justice Department enforcement,” Crapo told the newspaper. “I firmly support states’ rights to determine the definition of marriage.”

The Republicans who have so far supported the bill are Sens. Susan Collins of Maine; Rob Portman of Ohio; Thom Tillis and Richard Burr of North Carolina; Roy Blunt of Missouri; Shelley Moore Capito of West Virginia; Cynthia Lummis of Wyoming; Lisa Murkowski and Dan Sullivan of Alaska; Mitt Romney of Utah; Todd Young of Indiana; and Joni Ernst of Iowa.