The Senate advanced the Respect for Marriage Act on Wednesday.
Sixty-two senators voted on Wednesday to advance a bill that would explicitly protect same-sex and interracial marriages. But 37 senators — all Republicans — voted against cloture and to end debate of the Respect for Marriage Act, introduced to prevent the U.S. Supreme Court from further eroding constitutional rights affirmed in precedent.
With 60 votes needed to advance most legislation in the Senate, the bill now moves forward.
The legislation would repeal the 1996 Defense of Marriage Act, which allowed both the federal government and the states to refuse to recognize same-sex marriages. While declared unconstitutional in previous Supreme Court rulings, the law remains part of the U.S. Code. The bill states:
No person acting under color of State law may deny—
"(1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals; or
"(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals."
The House of Representatives passed a version of the legislation 267-157 on July 19. Every Democratic member and 47 Republicans voted yes; all 157 no votes came from Republican members.
A bipartisan group of senators reached an agreement on an amended version of the bill on Nov. 14, adding language to ensure that no religious organization is forced to participate in weddings it does not recognize.
Civil rights advocates say the bill is needed to guard constitutional rights against an increasingly right-wing Supreme Court, whose majority already struck down a nearly 50-year-old abortion rights precedent with its ruling in Dobbs v. Jackson Women's Health Organization in June.
The Supreme Court has expressly affirmed both the right to interracial marriage (in Loving v. Virginia in 1967) and the right to same-sex marriage (in United States v. Windsor in 2013 and Obergefell v. Hodges in 2015). But like the abortion rights protections affirmed in Roe v. Wade in 1973, these precedents are subject to the will of a right-wing court majority filled out by former President Donald Trump with the appointment of Justices Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh.
Justice Clarence Thomas, in his concurring opinion in the Dobbs case, expressly called for the Supreme Court to reconsider and overturn the same-sex marriage rulings and other privacy-related decisions.
Cases like Griswold v. Connecticut, (right of married persons to obtain contraceptives); Lawrence v. Texas, (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, (right to same-sex marriage), are not at issue. ... For that reason, in future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is "demonstrably erroneous," we have a duty to "correct the error" established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.
Rather than say their opposition was driven by their staunch opposition to LGBTQ rights, Senate Republicans framed the bill as unnecessary, distracting, and somehow elitist.
Consistently anti-LGBTQ Sen. Marco Rubio (R-FL) called the bill a "stupid waste of time" and attacked Transportation Secretary Pete Buttigieg, who had questioned Rubio's "waste of time" statement, tweeting that Buttigieg "wants us to focus on a fake problem" and saying in a video clip: "I'm going to focus on the real problems. I'm not going to focus on the agenda that [is] dictated by a bunch of affluent elite liberals and a bunch of Marxist misfits who today, sadly, control the agenda of the modern Democratic Party."
On his official Senate website, Sen. Steve Daines (R-MT) said in a statement: "I believe marriage is between a man and a woman. I'm opposed to this bill and believe it's another attempt by Speaker Pelosi and the Democrats to distract the American people from the inflation crisis, energy crisis and the southern border crisis they've created."
Sen. Bill Cassidy (R-LA) called the bill "such a ploy to distract the press from the issues before us" and told CNN he wouldn't answer the question of whether he would vote for it: "This is a pure messaging bill by a party which has failed on substantive issues, be it inflation, crime or the border, and now are looking for cultural issues in order to somehow do better in November. ... It's such a silly messaging bill, I'm just not going to address that."
Both voted no on Wednesday.
Sen. Tammy Baldwin (D-WI), the first openly gay person elected to the U.S. Senate and the lead sponsor of the bill, rejected those criticisms.
Baldwin said that she spoke to Rubio right after he said the bill was a "stupid waste of time" on July 20. According to CNN, Baldwin said: "I said that, 'The recent Supreme Court decision eroded a constitutional right to privacy. There's a whole bunch of cases that have been decided based on a constitutional right to privacy that are in jeopardy,' which he disagrees with."
A 2021 poll by the nonpartisan research organization PRRI found that 68% of U.S. adults now support marriage equality for same-sex couples, compared to just 30% who oppose it.
A final vote is likely later this week. If the amended version passes, it would then go back to the House for a vote before President Joe Biden could sign it.
Published with permission of The American Independent Foundation.