WASHINGTON – The Senate on Tuesday passed legislation to guarantee the right to marry regardless of race or sex, as a dozen Republicans joined all 50 Democratic senators to enshrine in law a right that has previously been protected only by Supreme Court rulings that advocates fear could be overturned.
The Respect for Marriage Act, which is expected to pass the House easily and go to President Joe Biden to be signed into law, repeals a 1996 law that defined marriage as only between a man and a woman. While it doesn’t require states to issue licenses for same-sex and interracial marriages, the bill mandates that they recognize marriages performed in other states, regardless of “sex, race, ethnicity, or national origin.” It would allow the attorney general or any person harmed by a violation of the law to file a civil lawsuit.
The Supreme Court established a federal right to same-sex marriage in a 5-4 ruling in 2015, but a member of the court’s conservative supermajority suggested earlier this year that decision could be overturned, prompting a push in Congress to pass more durable protections for same-sex couples. The bill also would establish a nationwide right to interracial marriage, which was made legal by a 1967 Supreme Court ruling but is not explicitly protected by the Constitution.
Sen. Patty Murray, D-Wash., said the Supreme Court’s decision in June to overturn a nearly 50-year-old precedent that had protected abortion rights made Tuesday’s vote necessary.
“There should be no doubt that everyone should have their marriages recognized, but after Roe v. Wade was overturned, I heard from constituents across Washington state who were worried that far-right Supreme Court Justices would rip away their right to marry who they love,” Murray said in a statement. “That’s why this legislation matters and, today, we took a meaningful step towards protecting same-sex marriage at the federal level.”
Thirty-six GOP senators, including Mike Crapo and Jim Risch of Idaho, voted against the bill. Some Republicans argued it was unnecessary, since there is no active challenge to same-sex marriage rights in the courts, while others said its protections for religious liberties and states’ rights didn’t go far enough.
Sen. Maria Cantwell, D-Wash., responded to critics in a speech on the Senate floor before a procedural vote on the bill Nov. 16.
“These are strong protections that are long overdue,” Cantwell said. “I understand some of my colleagues do not see a need for passing this legislation, but I would ask them to stand in the shoes of someone in a marriage that is in danger of being dissolved overnight by a court decision.”
When the Supreme Court undid federal protections for a woman’s right to terminate a pregnancy, Justice Clarence Thomas wrote a concurring opinion that suggested the court’s 6-3 conservative majority should reconsider other past decisions that protected rights to same-sex marriage and contraception, which like abortion rights are not explicitly spelled out in the Constitution.
Thomas, who is in an interracial marriage, notably did not mention the 1967 case that established a right to marry regardless of race as a precedent the court should revisit, despite it being based on similar legal reasoning.
To win over the minimum of 10 Republican votes needed to overcome a Senate filibuster, a bipartisan group of senators introduced an amendment meant to address concerns about religious liberty. As a result, the bill does not require nonprofit religious organizations to provide “any services, facilities, or goods” for a same-sex marriage and ensures that refusing to recognize same-sex marriage won’t affect the tax-exempt eligibility of organizations such as churches or universities.
Those changes didn’t go far enough for most Senate Republicans. In a statement Nov. 17, Risch said he supports a 2006 amendment to Idaho’s constitution – which a federal judge overturned in 2014 – that prohibits same-sex marriage.
“Regarding same-sex marriage, Idaho has a constitutional amendment on the books defining marriage as its voters determined, and that is the standard I support,” Risch said. “The federal government has no business attempting to direct our views on this matter. In addition, this bill lacks crucial religious liberty protections for individuals, schools, adoption agencies and faith-based organizations that hold valid religious views that disagree with this mandate.”
Risch added that interracial marriage “is protected by the United States Constitution,” and that no state is trying to overturn that right. The right to interracial marriage, based on the Supreme Court’s 1967 ruling in Loving v. Virginia, is what legal scholars call an “unenumerated right,” one that is not explicitly spelled out in the Constitution.
Crapo explained his opposition to the bill in a questionnaire published by The Idaho Statesman in October.
“This bill would federalize the law of marriage, mandating that every state follow every other state’s marriage laws, establishing private rights of action and Justice Department enforcement,” Crapo told the newspaper. “I firmly support states’ rights to determine the definition of marriage.”
Passage of the bill, which began as a messaging exercise by Democrats before picking up a surprising number of GOP votes in the House, illustrates how quickly American society has evolved on the issue of same-sex marriage. The legislation it repeals, the Defense of Marriage Act, passed in 1996 with an overwhelming majority of both parties’ senators – including Murray – voting in favor of denying federal benefits to same-sex couples and letting states choose not to recognize their marriages.
Murray reversed course and co-sponsored legislation to repeal the Defense of Marriage Act in 2011, a year before then-President Barack Obama publicly endorsed same-sex marriage rights. Cantwell, Crapo and Risch were not in the Senate in 1996.
The bill passed by a vote of 61-36, with support from 12 Republican senators: Susan Collins of Maine, Rob Portman of Ohio, Thom Tillis and Richard Burr of North Carolina, Roy Blunt of Missouri, Shelley Moore Capito of West Virginia, Cynthia Lummis of Wyoming, Lisa Murkowski and Dan Sullivan of Alaska, Mitt Romney of Utah, Todd Young of Indiana and Joni Ernst of Iowa. Sen. Raphael Warnock, a Georgia Democrat who is campaigning ahead of his state’s Tuesday runoff election, didn’t vote.
The bill will now go to the House, where 47 Republicans voted for an earlier version of the legislation in July along with all 220 Democrats, and to Biden’s desk after the same version passes both chambers. In a statement Tuesday, Biden said he “will promptly and proudly sign it into law.”