WASHINGTON — The Senate passed bipartisan legislation Tuesday to protect same-sex marriages, an extraordinary sign of shifting national politics on the issue and a measure of relief for the hundreds of thousands of same-sex couples who have married since the Supreme Court’s 2015 decision that legalized gay marriage nationwide.
The bill, which would ensure that same-sex and interracial marriages are enshrined in federal law, was approved 61-36 on Tuesday. Senate Majority Leader Chuck Schumer said the legislation was “a long time coming” and part of America’s “difficult but inexorable march towards greater equality.”
Democrats are moving quickly, while the party still holds the majority in both chambers of Congress, to send the bill to the House and then – they hope – to President Joe Biden’s desk. The bill has gained steady momentum since the Supreme Court’s June decision that overturned the federal right to an abortion, a ruling that included a concurring opinion from Justice Clarence Thomas that suggested same-sex marriage could also come under threat. Bipartisan Senate negotiations got a kick-start this summer when 47 Republicans unexpectedly voted for a House bill and gave supporters new optimism.
The legislation would not force any state to allow same-sex couples to marry. But it would require states to recognize all marriages that were legal where they were performed, and protect current same-sex unions, if the court’s 2015 Obergefell v. Hodges decision were to be overturned.
“It doesn’t prevent states from deciding that same-sex couples can no longer get married,” Equality Illinois CEO Brian C. Johnson said.
If a state bans same-sex marriage, couples would have the option to marry in states where same-sex marriage is legal.
“If your home state won’t marry you, you can go to another state, get married there, bring the marriage license back to your home state and your home state has got to recognize them,” Northwestern University Law Professor Andrew Koppelman said.
If signed into law, nonprofit religious organizations would not be required to hold same-sex weddings or related celebrations.
That’s a stunning bipartisan endorsement, and evidence of societal change, after years of bitter divisiveness on the issue.
The bill would also protect interracial marriages by requiring states to recognize legal marriages regardless of “sex, race, ethnicity or national origin.”
A new law protecting same-sex marriages would be a major victory for Democrats as they relinquish their two years of consolidated power in Washington, and a massive win for advocates who have been pushing for decades for federal legislation. It comes as the LGBTQ community has faced violent attacks, such as the shooting last weekend at a gay nightclub in Colorado that killed five people and injured at least 17.
“Our community really needs a win, we have been through a lot,” said Kelley Robinson, the incoming president of Human Rights Campaign, which advocates on LGBTQ issues. “As a queer person who is married, I feel a sense of relief right now. I know my family is safe.”
The vote was personal for many senators, too. Schumer said on Tuesday that he was wearing the tie he wore at his daughter’s wedding, “one of the happiest moments of my life.” He also recalled the “harrowing conversation” he had with his daughter and her wife in September 2020 when they heard that liberal Justice Ruth Bader Ginsburg had passed away. “Could our right to marry be undone?” they asked at the time.
With conservative Justice Amy Coney Barrett replacing Ginsburg, the court has now overturned Roe v. Wade and the federal right to an abortion, stoking fears about Obergefell and other rights protected by the court. But sentiment has shifted on same-sex marriage, with more than two-thirds of the public now in support.
Still, Schumer said it was notable that the Senate was even having the debate after years of Republican opposition. “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,” he said.
Passage came after the Senate rejected three Republican amendments to protect the rights of religious institutions and others to still oppose such marriages. Supporters of the legislation argued those amendments were unnecessary because the bill had already been amended to clarify that it does not affect rights of private individuals or businesses that are currently enshrined in law. The bill would also make clear that a marriage is between two people, an effort to ward off some far-right criticism that the legislation could endorse polygamy.
Republican Sen. Thom Tillis of North Carolina, who has been lobbying his fellow GOP senators to support the legislation for months, pointed to the number of religious groups supporting the bill, including the Church of Jesus Christ of Latter-day Saints. Some of those groups were part of negotiations on the bipartisan amendment.
“They see this as a step forward for religious freedom,” Tillis says.
The nearly 17-million member, Utah-based faith said in a statement this month that church doctrine would continue to consider same-sex relationships to be against God’s commandments. Yet it said it would support rights for same-sex couples as long as they didn’t infringe upon religious groups’ right to believe as they choose.
Most Republicans still oppose the legislation, saying it is unnecessary and citing concerns about religious liberty. And some conservative groups stepped up opposition in recent weeks, lobbying Republican supporters to switch their votes.
“As I and others have argued for years, marriage is the exclusive, lifelong, conjugal union between one man and one woman, and any departure from that design hurts the indispensable goal of having every child raised in a stable home by the mom and dad who conceived him,” the Heritage Foundation’s Roger Severino, vice president of domestic policy, wrote in a recent blog post arguing against the bill.
In an effort to win the 10 Republican votes necessary to overcome a filibuster in the 50-50 Senate, Democrats delayed consideration until after the midterm elections, hoping that would relieve political pressure on GOP senators who might be wavering.
Eventual support from 12 Republicans gave Democrats the votes they needed.
Along with Tillis, Maine Sen. Susan Collins and Ohio Sen. Rob Portman supported the bill early on and have lobbied their GOP colleagues to support it. Also voting for the legislation in two test votes ahead of passage were Republican Sens. Richard Burr of North Carolina, Todd Young of Indiana, Shelley Moore Capito of West Virginia, Mitt Romney of Utah, Joni Ernst of Iowa, Roy Blunt of Missouri, Cynthia Lummis of Wyoming and Lisa Murkowski and Dan Sullivan of Alaska.
Lummis, one of the more conservative members of the Senate, spoke ahead of the final vote about her “fairly brutal self soul searching” before supporting the bill. She said that she accepts her church’s beliefs that a marriage is between a man and a woman, but noted that the country was founded on the separation of church and state.
“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,” Lummis said.
The growing GOP support for the issue is a sharp contrast from even a decade ago, when many Republicans vocally opposed same-sex marriages.
Wisconsin Sen. Tammy Baldwin, a Democrat who is the first openly gay senator and has been working on gay rights issues for almost four decades, said this month that the newfound openness from many Republicans on the subject reminds her “of the arc of the LBGTQ movement to begin with, in the early days when people weren’t out and people knew gay people by myths and stereotypes.”
Baldwin, the lead Senate negotiator on the legislation, said that as more individuals and families have become visible, hearts and minds have changed.
“And slowly laws have followed,” she said. “It is history.”
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