Justice Clarence Thomas wrote several opinions hostile to the Obergefell decision, in which the Supreme Court ruled that the right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, so U.S. senators voted to protect same-sex and interracial marriages Tuesday, 61-36.
Twelve Republicans voted for the legislation, which is expected to reach President Joe Biden’s desk to be signed into law after final passage in the U.S. House.
“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 Respect for Marriage Act, (H.R. 8404), is a bipartisan bill in Congress requiring the federal government to recognize the validity of same-sex and interracial marriages in the United States and to protect religious liberty.
The legislation repeals the 1996 Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman under federal law and was later ruled unconstitutional.
The Respect for Marriage Act would also require states to recognize same-sex and interracial marriages performed elsewhere, although it does not preclude states from passing laws banning those marriages.
“This legislation unites Americans,” said Democratic Senator Tammy Baldwin, one of the act’s co-sponsors and the first openly gay woman elected to the U.S. Senate.
“With the Respect for Marriage Act, we can ease the fear that millions of same-sex and interracial couples have that their freedoms and their rights could be stripped away by passing this bill,” Baldwin said. “We are guaranteeing same-sex and interracial couples, regardless of where they live, that their marriage is legal, and that they will continue to enjoy the rights and responsibilities that all other marriages are afforded.”
The U.S. Supreme Court legalized same-sex marriage at the federal level in its 2015 Obergefell v. Hodges decision. But the court’s Dobbs v. Jackson decision in June overturning a right to abortion at the federal level raised concerns about federal protections for other rights.
In his concurring opinion in Dobbs v. Jackson, Justice Clarence Thomas wrote the court should reconsider other decisions based on the right to privacy, such as guarantees for the right to marry or the right to use birth control, arguing the U.S. Constitution does not guarantee those rights. Thomas’ opinion led to widespread concern the court would next move to overturn the right to same-sex marriage. A bipartisan group of senators worked on the Respect for Marriage Act to address this possibility.
Republican Senator Mike Lee said on the Senate floor during the debate that this legislation was unnecessary.
“A single line from a single concurring opinion does not make the case for legislation that seriously threatens religious liberty. The Respect for Marriage Act is unnecessary. States are not denying recognition of same-sex marriage. And there’s no serious risk of anyone losing recognition,” he said.
The legislation passed the U.S. House of Representatives earlier this year with support from 47 Republicans. It now heads back to the House so that members can vote on religious liberty protection amendments added in the Senate.
Liberty Counsel, a nonprofit legal organization advocating for anti-LGBT discrimination under the guise of religious liberty, said in a statement that the Respect for Marriage Act was unconstitutional and does not provide “any protection for religious individuals or organizations, and the subsequent amendments to the bill exclude a large percentage of constitutionally and statutorily protected religious organizations.”
But Republican Senator Susan Collins, another co-sponsor of the legislation, said on the Senate floor that concerns about religious liberty were a false argument.
“This legislation would make clear in federal law that nonprofit religious organizations and religious educational institutions cannot be compelled to participate in or support the solicitation or celebration of marriages that are contrary to their religious beliefs,” she said.
In a May 2022 Gallup poll, 71% of Americans said they support same-sex marriage. Only 27% supported it when the poll was first taken in 1996.
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