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The legislation is a preemptive move against a hyper-conservative Supreme Court.
The U.S. Senate voted 61-36 Tuesday to pass the Respect for Marriage Act, which will write marriage equality into federal law, maintaining it even if the Supreme Court overturns its 2015 ruling that established equal marriage rights nationwide.
The bill has already been passed by the House of Representatives, but the Senate added an amendment to it aimed at protecting religious freedom, so the new version needs to be voted on by the House before it can go to President Joe Biden for his expected signature.
"Today, after many rounds of bipartisan talks and after many doubts that we could even reach this point, we are taking the momentous step forward for greater justice for LGBTQ Americans," Senate Majority Leader Chuck Schumer said before the vote.
He said the first person he would call after the vote would be his daughter Alison, who is in a same-sex marriage.
"What a great day," he added after the vote finished.
Right before the vote, Sen. Tammy Baldwin of Wisconsin, the first out member of the body, offered a note of thanks: "I want to thank the advocates who have been fighting for marriage equality for decades and I want to recognize the millions of same-sex and interracial couples who have truly made this moment possible by living their true selves and changing the hearts and minds of people around this country."
The push for the Respect for Marriage Act came after Justice Clarence Thomas wrote that the Obergefell v. Hodges decision, in which the Supreme Court ruled for marriage equality in 2015, should be overturned. He did so in his concurring opinion in Dobbs v. Jackson Women's Health Organization, the June ruling in which the court overturned Roe v. Wade, revoking the nationwide guarantee of abortion rights. There is no case currently making its way through the courts challenging Obergefell, but Thomas and other conservatives have made clear they would welcome one.
The Respect for Marriage Act would repeal the Defense of Marriage Act, which has not been enforceable since the Supreme Court found it unconstitutional in Windsor v. U.S. in 2013 but remains on the books. It denied federal recognition to same-sex marriages and allowed states to deny recognition to such marriages from other states.
It would also enshrine marriage equality in federal law and assure that any marriage valid in the couple's home state would be considered valid by the U.S. government, no matter the race or gender of the spouses.
And it would provide other legal safeguards by barring anyone acting under a state law from denying full faith and credit to a marriage based on the sex, race, ethnicity, or national origin of the spouses. The U.S. attorney general would have the power to enforce this, and anyone harmed by such a denial would have a right to sue.
The amendment, OK'd Monday, was introduced by a bipartisan group of senators to allay concerns that the act would interfere with religious liberty. The amendment confirms that no nonprofit religious organization would have to provide goods, services, or facilities for wedding ceremonies or receptions, and it clarifies that the federal government would not have to recognize polygamous marriages. A coalition of faith groups has endorsed the amendment.
The Senate rejected more restrictive amendments introduced by Republican Sens. Mike Lee of Utah, James Lankford of Oklahoma, and Marco Rubio of Florida, all aimed at protecting opponents of marriage equality from legal action over discrimination.
Civil rights groups immediately praised the vote but noted that the fight for LGBTQ+ equality is not over.
"When we read Justice Clarence Thomas' concurring opinion in the decision to overturn Roe v. Wade, we knew it was intended to be a rallying cry for anti-equality forces demanding that marriage equality be on the chopping block next," said a statement from LGBTQ Victory Fund President and CEO Annise Parker. "We also understood that with a Supreme Court bent on choosing politics over precedent, enshrining LGBTQ freedoms into federal law once and for all was essential.
"Representation is power. Despite lacking equitable representation, our LGBTQ congressional delegation consistently punches above their weight. We aren't always the loudest, we aren't always the most visible, but we have the grit and thick skins to fight the hardest."
Parker lauded the efforts of the two out members of the Senate, Baldwin and Kyrsten Sinema.
"Senator Baldwin is a true political juggernaut and has solidified her place as one of the greatest LGBTQ leaders of all time," Parker said. "The personal conversations she had behind closed doors with reluctant colleagues certainly changed hearts and minds and led to today's result.
"This landmark piece of legislation protects the marriages of millions of LGBTQ Americans who have not slept well for months, wondering if our marriages would be dissolved by an activist court. While the Respect for Marriage Act is undoubtedly one of the most important pro-LGBTQ laws ever passed, it does not require states to grant marriages to LGBTQ couples. Until then, our fight is not over."
"For the last seven years, LGBTQ families across the country have been able to build their lives around their right to marriage equality," James Esseks, director of the American Civil Liberties Union's LGBTQ & HIV Rights Project, said in a press release. "The Respect for Marriage Act will go a long way to ensure an increasingly radical Supreme Court does not threaten this right, but LGBTQ rights are already under attack nationwide. Transgender people especially have had their safety, dignity, and health care threatened by lawmakers across the country, including by members of this Congress. While we welcome the historic vote on this measure, members of Congress must also fight like trans lives depend on their efforts because trans lives do."
