Senate passes protections for same-sex marriages

The House could take up the legislation, which got bipartisan support, as early as next week

Sen. Tammy Baldwin, D-Wis., one of the lead negotiators on the same-sex marriage bill, is seen after the Senate luncheons in the Capitol on Tuesday. (Tom Williams/CQ Roll Call)
Sen. Tammy Baldwin, D-Wis., one of the lead negotiators on the same-sex marriage bill, is seen after the Senate luncheons in the Capitol on Tuesday. (Tom Williams/CQ Roll Call)
Posted November 29, 2022 at 6:35pm

The Senate passed a bill Tuesday to codify federal recognition of same-sex marriage that got bipartisan support because of added measures on religious liberty protections.

The 61-36 vote sends the bill to the House, where Democratic leaders have said they intend to hold a vote on the measure during the lame-duck session. House Majority Leader Steny H. Hoyer, D-Md., told reporters Tuesday the chamber could take up the legislation as early as next week.

The bill would repeal the 1996 law known as the Defense of Marriage Act that the Supreme Court found to be largely unconstitutional in a 2013 decision. It would also codify federal recognition of same-sex marriages that are legal in the state where the marriage was performed.

One of the lead negotiators on the bill, Sen. Tammy Baldwin, D-Wis., told reporters Tuesday that it would ease concerns that the Supreme Court could revisit precedents that protected same-sex and interracial marriages as constitutional rights.

“We have the opportunity to ease these anxieties and fears and give millions of same-sex and interracial couples need, that their marriages are, and will continue to be, valid,” Baldwin said.

Majority Leader Charles E. Schumer of New York, wearing the same tie he wore to his daughter’s same-sex wedding, said on the floor that “after months of hard work, 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.”

Schumer also acknowledged the Republicans who voted in favor of advancing the legislation. “Because of our work together, the rights of tens of millions of Americans will be strengthened under federal law,” Schumer said. “That’s an accomplishment we should all be proud of.”

Republican amendments

Amendments from Republican Sens. Mike Lee of Utah, James Lankford of Oklahoma and Marco Rubio of Florida failed to gain enough support to change the bill, on 48-49, 45-52 and 45-52 votes Tuesday.

Lee’s amendment would restrict the ability of the Department of Education and IRS to target organizations based on their stated religious beliefs. The language would go further than the base bill, which would provide those protections only to religious organizations.

Republican opponents, including Lee, argued the bill would not protect same-sex marriages that are already protected by the Supreme Court’s 2015 decision in Obergefell v. Hodges.

Lee, in a floor speech, argued his amendment would protect individuals “who wish to act according to their religious beliefs, from being forced to abandon their God-given mandates to love, serve and care for the poor, the orphan and the refugee.”

“If we allow the government to threaten their ability to do so then the religious liberty of every American is in peril,” Lee said.

The Lankford amendment would limit the recognition of marriage to only federal, state and tribal governmental entities.

In a floor speech, Lankford argued the bill would actually expand recognition of same-sex marriage to state-hired adoption agencies or homeless shelters.

Lankford also said the bill’s private right of action and vague language would allow for an explosion of federal litigation over same-sex marriage.

“What will happen in the days ahead, will be there will be who knows countless numbers of lawsuits, testing every new definition of what under the color of state law, what a partnership with government might look like,” Lankford said.

The Rubio amendment would remove the private right of action allowing individuals to sue if their marriage is not recognized by a state.

The House passed a similar bill in July that would mandate that all states honor out-of-state marriages regardless of the race, gender or sexual orientation of the couple.

But Republicans in the narrowly divided Senate called the House bill a nonstarter, and negotiations led by Baldwin hammered out a compromise. The substitute bill included narrower provisions on same-sex marriage and included language to protect religious organizations’ nonprofit status.

Numerous business and religious groups, including the Church of Jesus Christ of Latter-day Saints and the National Association of Manufacturers, have announced support for the revised legislation.

A congressional push to pass a bill to legalize same-sex marriage followed a Supreme Court decision earlier this year that wiped out a constitutional right to an abortion.

In a concurring opinion, Justice Clarence Thomas said the decisions undergirding same-sex marriage, same-sex relationships and access to contraception should be revisited.