Law to protect same-sex marriages and religious freedom clears final Senate hurdle

The U.S. Senate on Tuesday gave its final approval to a bill that enhances legal protections for same-sex marriages, which passed with the support of a dozen Republicans who said it also protected rights of conscience and religious liberty for conservatives.

The Respect For Marriage Act passed 61-to-36 and will go to the House, which has already passed it once but needs to do so again to approve changes made in the Senate, and then to President Biden’s desk for his signature, before it becomes law.

A handful of amendments were voted on Tuesday before the Senate held its final vote, but none passed. One of the bill's most outspoken critics, Sen. Mike Lee, R-Utah, offered an amendment that sought to widen religious freedom provisions, but didsoafter opposing the bill for most of the last several months. That provision failed to reach the 60-vote threshold needed for most legislation under the filibuster, a procedure used to ensure a super-majority supports controversial bills.

Democrats sought to pass the bill to reassure gay couples that even if the Supreme Court overturned the 2015 decision Obergefell vs. Hodges, which legalized same-sex marriages, their unions and the corresponding benefits would remain legally recognized.

Concern about the status of the Obergefell decision grew out of a concurrence written by Supreme Court Justice Clarence Thomas this year in which heraised the possibility of overturning it. There is no indication, however, that any other justices agree with him.

But advocates for the bill, which includes gay rights groups as well as major religious conservative organizations,have described it as a compromise meant to ensure both sides that their worst-case scenario fears are off the table.

Senate Majority Leader Chuck Schumer, D-NY, said the bill was "deeply personal for many of us in this chamber," in remarks on the Senate floor before the vote. His daughter Alison Schumermarried Elizabeth Weiland in 2018.

“It’s personal for me of course, it’s personal to many of my colleagues and their staff and their families. And while we still have a few more votes to take, today is certainly an occasion for joy and relief,” Schumer said.

A dozen Republican senators supported the bill after months of bipartisan negotiations in which provisions were added to the bill that give protections to religious conservatives who believe same-sex marriage is contrary to their faith teachings.

The negotiations were led on the Republican side by Sen. Rob Portman, R-Ohio, who opposed same-sex marriage until 2013. After his son Will told him during his time at college that he was gay, Portman publiclychanged his position. Portman is also retiring from the Senate and will not face reelection.

On the Democratic side, Sen. Tammy Baldwin, D-WI — the first openly gay woman elected to Congress — led the negotiations, along with Sen. Kyrsten Sinema, D-AZ, the first open bisexual elected to Congress. On the Republican side, Sen. Susan Collins, R-ME, and Sen. Thom Tillis, R-NC, also took the lead with Portman.

Schumer considered forcing a vote on the bill earlier this year before the midterm elections, but the bipartisan working group of senators told him the chances of getting 60 votes to pass it would be much greater after the election.

“Today, we have vindication. The wait was well worth it,” Schumer said.

The only holdouts expressing outright opposition have been a subset of religious conservatives who say they do not want anything in the law to recognize same-sex marriage and who argue that this bill will be used to persecute those who disagree.

The law will ensure that any marriage license granted to a same-sex couple is legally valid, even if the couple lives in a state where state law does not recognize it. In other words, if Obergefell was overturned, it would require states where gay marriage is not enshrined in state law to recognize those licenses.

The RFMA also repealsa provision in the 1996 Defense of Marriage Act, which allowed states to discriminate against same-sex couples, and says that "an individual shall be considered married if that individual's marriage is between 2 individuals and is valid in the State where the marriage was entered into."

This provision is also meant to protect interracial couples from the prospect that the Supreme Court might some day overturn the prohibition on discriminating against couples of different races. That scenario wasalso raised by Thomas in his written opinion this past summer.

Conservatives, meanwhile, have worried since Obergefell that the legalization of same-sex marriage would be used to punish them for their long-held views.

The RFMA will enshrine in law language similar to that included in the Obergefell decision, that “diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises.”

"Therefore, Congress affirms that such people and their diverse beliefs are due proper respect," thebill's text says.

Religious liberty advocatesargue that this language is a step toward deescalating the cultural and legal conflicts between gay rights advocates and religious conservatives, by decoupling conservative views on sexuality and marriage from comparisons to racial animus or discrimination.

But other conservative legal scholars argued Tuesday that the law does the opposite.

The law also states that it is consistent with the First Amendment for “nonprofit religious organizations” to be able to refuse “services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage” and that the law cannot be used to deprive religious organizations of tax exemptions or other such privileges under the law.

"Because we conclude that the bill's protections are important and that any new risks it creates are quite limited, we see it as an advance for religious liberty," said four conservative legal scholars, ina letter supporting the bill.