After compromise, Senate poised to protect same-sex marriage

Reflecting a marked GOP shift on same-sex marriage in recent years, Congress has secured enough bipartisan support to pass a marriage equality bill when it returns after Thanksgiving.

Democrats put forward the Respect for Marriage Act to shore up legal protections for same-sex and interracial couples, citing concerns that the Supreme Court could overturn key precedents that support such marriages, as it did with abortion this summer. The bill passed the House in July with 47 GOP lawmakers voting in favor. And it cleared a key hurdle this week in the Senate, thanks to a bipartisan amendment with religious liberties protections that won the support of a dozen Republicans. 

“When we reach beyond partisan talking points, we expand what’s possible,” said Democratic Sen. Kyrsten Sinema of Arizona, who is bisexual and helped to negotiate the amendment. “We were careful to ensure that in shoring up some rights, we did not infringe on others.” 

Indeed, a central principle – and challenge – of American democracy is how to protect the rights of one group without stepping on the rights of another. Proponents of the Senate compromise say it strikes the right balance, giving all couples certainty, dignity, and respect without compelling faith-based nonprofits to act contrary to sincerely held religious beliefs. Some proponents say the Senate compromise renders it less meaningful, while critics are concerned the amendment doesn’t go far enough in protecting religious liberty.

“The bill pays lip service to protecting religious liberty but does not even begin to address the most serious, egregious, and likely threats to religious liberty presented by this bill,” said GOP Sen. Mike Lee of Utah in a floor speech.

Dramatic shift in 25 years

Such criticism notwithstanding, the GOP support marks a significant shift on same-sex marriage since the Senate passed the Defense of Marriage Act (DOMA) with an overwhelming bipartisan majority in 1996. More than 30 Democrats – including then-Sen. Joe Biden – joined all Republicans in recognizing marriage as a legal union between a man and a woman for the purposes of determining federal benefits. The Supreme Court deemed that provision unconstitutional in 2013, but the Respect for Marriage Act would formally repeal and replace it.

Reflecting changing American views, the new bill would also overturn DOMA’s provision that no state would be compelled to recognize a same-sex marriage performed in another state.

Today, there are 1 million households with same-sex couples, a little over half of whom are married, according to a 2019 Census Bureau survey. And a 2021 Gallup Poll found that the percentage of Americans saying they self-identify as LGBTQ doubled in a decade, from 3.5% to 7.1%.

Among congressional staffers, who play a significant role in shaping legislation, the percentage is much higher. Those who identify as LGBTQ now make up 16% of each Democratic senator’s staff on average, up from 11% three years ago, according to figures from Senate Democrats’ annual audit of staff diversity. Republicans do not conduct such an audit.

About 6 in 10 Americans say legalizing same-sex marriage is “very good” or “somewhat good” for society, with 37% considering it to be “somewhat bad” or “very bad,” according to a Pew survey last month.

Democratic Sen. Tammy Baldwin of Wisconsin, who in 2012 became the first openly gay person elected to the Senate, told the Monitor a key reason for the GOP shift is how many colleagues know of relatives, neighbors, or fellow congregants in a same-sex marriage. For example, GOP Sen. Rob Portman, whose son is gay, cosponsored the religious liberty amendment.

“Knowing people and knowing of their interest in protecting their families with the legal safeguards that marriage provides – that changes a lot,” said Senator Baldwin, noting that without legal protections, same-sex spouses wouldn’t be allowed to visit each other in the hospital, receive military benefits, or be accorded the same support and security as heterosexual spouses if one serves as a diplomat in the Foreign Service. 

Roots of a compromise

This week, after months of negotiations, Sens. Baldwin, Portman, and Sinema, along with GOP Sens. Susan Collins and Thom Tillis, rolled out their amendment, which is essentially the Senate’s version of the House bill.

The House bill would “provide statutory authority” for both same-sex and interracial marriages, assuring couples of uninterrupted rights and benefits. It does not compel any state to legalize same-sex marriage, as did Obergefell v. Hodges, which declared marriage a constitutional right in 2015. However, it does mandate that all 50 states recognize such marriages performed in states where they are legal, and empowers the attorney general to bring civil action if that provision is violated. 

The Senate version recognizes that “reasonable and sincere” people can disagree on marriage and enumerates protections for religious nonprofits. Among other things, it made clear that nonprofits cannot lose their tax-exempt status or other benefits by refusing to solemnize or celebrate marriages. 

Republican critics say the bill is unnecessary, given the absence of any challenges to Obergefell. Democrats counter that Justice Clarence Thomas has basically invited a challenge. In his concurring opinion in Dobbs, the case that overturned 50 years of precedent on abortion, he said that nothing in the court’s opinion “should be understood to cast doubt on precedents that do not concern abortion,” but went on to suggest that the court reconsider certain precedents, including Obergefell, because their legal underpinning was “demonstrably erroneous.” Though he left the door open for finding other constitutional provisions that would support such rights, that did little to assuage concerns.

“I think we have to believe what those on the far right are saying, including Clarence Thomas, that this is the next stop as they seek to undo precedent and attack the right to privacy in our country,” says Rep. Chris Pappas, co-chair of the House’s LGBTQ Equality Caucus.

Critics, however, see this bill as compounding a risk raised by dissenting justices in the Obergefell case.

The risk is whether religious Americans will be retaliated against under federal law “based solely on a religious or moral conscience based belief about the definition of marriage,” said Senator Lee, a member of The Church of Jesus Christ of Latter-day Saints. He called the amendment’s religious liberty protections “severely anemic,” despite them garnering the support of the The Church of Jesus Christ of Latter-day Saints and other religious entities. He urged the Senate to take up his more robust religious liberty amendment.

GOP Sen. Josh Hawley, who co-sponsored Senator Lee’s amendment, criticizes the bipartisan one for not protecting individuals or business owners. “You can drive a Mack truck through that,” he says. Senator Collins notes that current law does not provide such protection. The purpose of this measure, she explains, is to ensure that existing religious liberty provisions are upheld.

The Senate is expected to pass the bill when it reconvenes in late November and send the amended version back to the House. Representative Pappas says he expects it to become law by the end of the year. 

Some Democrats are disappointed because of the concessions made in the Senate to clear the 60-vote filibuster threshold. “This is not a bill that is going to formally codify same-sex marriage rights because of those concessions,” says Democratic Rep. Alexandria Ocasio-Cortez. “So I think we take what protections we get, but I do not think that we tout this as more than what it is.”