In a rare example of bipartisan cooperation, the U.S. Senate advanced the Respect for Marriage Act Nov. 16, clearing the way for likely passage of a bill that would protect same-sex marriage beyond future court challenges.
By a 62-to-37 vote, the Senate overcame the biggest procedural hurdle, the 60-vote threshold to prevent a filibuster. Twelve Republicans joined the 50 Democrats in the Senate to advance the bill, which now must be voted on formally by the Senate, then sent back to the House — where it already has passed — and then signed by President Joe Biden.
Among changes to the bill, Senate negotiators added language ensuring that churches, universities and other nonprofit religious organizations will not lose tax-exempt status or other benefits for refusing to recognize same-sex marriages and will not be required to accommodate the celebration of any marriage. Additional language says the bill does not require recognition of polygamous marriages.
Senate negotiators added language ensuring that churches, universities and other nonprofit religious organizations will not lose tax-exempt status or other benefits for refusing to recognize same-sex marriages.
The bill would protect against the perceived threat to same-sex marriage espoused by two Supreme Court justices in this summer’s Dobbs decision reversing the federal right to abortion. Justices Clarence Thomas and Samuel Alito said the court should use the anti-abortion ruling to revisit other cases, including the one that legalized same-sex marriage in 2015. They believe that case, like Roe v. Wade, was wrongly decided by the court.
Technically, the new legislation would repeal the 1996 Defense of Marriage Act and require the U.S. federal government to recognize same-sex and interracial marriages.
That the U.S. Congress would move from its staunch anti-gay position to the current openness to same-sex marriage in the span of 26 years illustrates the sea change that has occurred in American attitudes regarding LGBTQ rights and marriage.
President Biden issued a statement applauding this week’s Senate action: “Love is love, and Americans should have the right to marry the person they love. Today’s bipartisan vote brings the United States one step closer to protecting that right in law.”
He pledged to sign the bill when it hits his desk, which could be as soon as next week or the week after. Democrats need to get the deal closed before they lose majority control of the House in January.
Despite the bipartisan vote in the Senate this week, 37 Republican senators still voted against the bill, even though 70% of Americans, including a majority of Republicans, support same-sex marriage.
Opposition is centered in the evangelical Christian community, which is a key base of today’s Republican Party.
“Outside deep-red enclaves, Republicans cannot maintain their anti-same-sex marriage stance without marginalizing themselves.”
Washington Post columnist Jennifer Rubin explained the shifting calculus: “A critical mass of Republicans understand that same-sex marriage is here to stay. Whatever their personal views, they grasp that opposition to it signifies a level of bigotry even many GOP voters are unwilling to tolerate. The simple political reality is this: Outside deep-red enclaves, Republicans cannot maintain their anti-same-sex marriage stance without marginalizing themselves. It’s part of a slow recognition that their adoption of Christian nationalist positions alienates a substantial portion of voters.”
Key figures from the Religious Right lambasted the Senate action and urged Republicans to take note of their senators who voted for it.
“The so-called ‘Respect for Marriage’ Act is a direct threat to religious liberty. The supposed modifications to the House Bill are more window dressing than anything else,” said Al Mohler, president of Southern Baptist Theological Seminary.
The deceitfully named Respect for Marriage Act will be voted on by the U.S. Senate this week … . The bill strikes a blow at religious freedom for individuals and ministries and is really the ‘Destruction of Marriage Act,’” said Franklin Graham, president of Samaritan’s Purse and the Billy Graham Evangelistic Association.
Brent Leatherwood
Brent Leatherwood, new president of the Southern Baptist Ethics and Religious Liberty Commission, tweeted that marriage “is an institution designed by God, was created for our flourishing, is between one man and one woman for life.” He added: “Today’s Senate action is wrong. But because of the above biblical realities, no government action will ever redefine that truth.”
Other religious leaders praised the Senate action.
Amanda Tyler
“We applaud Republicans and Democrats working together to advance civil rights protections for same-sex and interracial couples, while reaffirming existing religious freedom protections. Lawmakers are right to recognize a diverse range of views on marriage among religious traditions as they work to pass legislation to ensure every American is equal in rights and dignity,” said Amanda Tyler, executive director of BJC. “We believe marriage equality and religious freedom are compatible. We urge lawmakers who value faith freedom for all to vote in favor of the Respect for Marriage Act and to continue working to uphold the rights of all Americans.”
Rachel Laser
Rachel Laser, president of Americans United for Separation of Church and State, said: “The Respect for Marriage Act is a vital step in our nation’s march toward freedom without favor and equality without exception. Today the Senate re-affirmed that marriages between two consenting adults, regardless of race or sex, must be treated as equal under the law. America’s constitutional promise of church-state separation requires this equal treatment and ensures that we all can live as ourselves and marry the person we love.”
While codifying a federal right to same-sex or interracial marriage, the Respect for Marriage Act does not solve one of the most vexing and frequent challenges working through the courts since the legalization of same-sex marriage: Can certain wedding vendors be compelled to serve all customers equally.
The Supreme Court also has not settled this question broadly, and new cases are before the court this term that will address the rights or responsibilities of wedding cake bakers, wedding photographers, wedding website designers and others who refuse to serve same-sex couples.
The Respect for Marriage Act also would not challenge the right of churches or ministers to refuse to host or officiate same-sex weddings.
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