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37 Republican senators just tried and failed to block same sex marriage protections

A final vote on the bill could come as early as Thursday

Eric Garcia,Alex Woodward
Wednesday 16 November 2022 22:32 GMT
US Senate votes to advance bill to enshrine same-sex marriage

The US Senate has voted 62-37 to advance a bill that would enshrine federal recognition of same-sex and interracial marriages.

The crucial procedural vote on 16 November follows the US Supreme Court’s reversal of constitutional protections for the right to an abortion, raising fears among civil rights groups and LGBT+ advocates that conservative justices would invite challenge to marriage equality and other rights previously defended by the court.

A final vote on the bill could come as early as Thursday.

President Joe Biden, who as vice president notoriously said he supported same-sex marriage before former president Barack Obama did in 2012, hailed the vote.

“Today’s bipartisan vote brings the United States one step closer to protecting that right in law,” he said.

The Respect for Marriage Act will ensure that LGBT+ couples and interracial couples “are respected and protected equally under federal law, and provide more certainty to these families” in the wake of the Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization, the president said.

The Respect for Marriage Act would repeal the Defense of Marriage Act of 1996, which allowed states to refuse to recognise civil marriages of same-sex couples and prohibit all same-sex couples, regardless of their marital status, from federal benefits and protections.

That law was effectively struck down by a pair of landmark US Supreme Court decisions: Windsor v United States in 2013 and Obergefell v Hodges in 2015.

The new bill would require the federal government to recognise a marriage between two people if the marriage was valid in the state where it was performed. It would also guarantee that such marriages are given full faith and credit, regardless of their sex, race, ethnicities or national origins.

It also would protect religious conscience objections, and non-profit religious organisations would not be compelled to provide services, goods or facilities for same-sex weddings. No eligible person or entity can lose their tax-exempt status.

“The right to marriage confers vital legal protections, dignity, and full participation in our society,” according to a statement from the White House. “No person should face discrimination because of who they are or whom they love, and every married couple in the United States deserves the security of knowing that their marriage will be defended and respected.”

Senator Mitt Romney, a Republican from Utah, voted for the legislation, citing the religious protections. Earlier this week, the Church of Jesus Christ of Latter Day Saints, of which Mr Romney is a member, gave its blessing on the legislation while maintaining its position that marriage is between a man and a woman.

“This legislation provides important religious liberty protections, which have long been a priority of mine and I'm happy to see that improvement,” Mr Romney told The Independent.

But Republican Senator Tommy Tuberville of Alabama said that he opposed the legislation because it did not protect religious organisations.

“There’s other language in that they possibly go after foundations and churches if they don’t agree,” he told The Independent.

Mary Bonauto, senior director of civil rights and legal strategies with GLBTQ Legal Advocates & Defenders, told reporters on Wednesday that the bill affirms the “status quo” to ensure that those critical Supreme Court precedents remain the law of the land.

Congress is “on very solid ground here, and taking the steps they are taking to make sure the state and federal governments respect marriages,” she told reporters.

The vote on 16 November follows months of negotiations between Republican Senators Thom Tillis of North Carolina, Rob Portman of Ohio and Susan Collins of Maine as well as Democratic Senators Kyrsten Sinema of Arizona and Tammy Baldwin of Wisconsin – the first openly LGBT+ women elected to Congress.

“A lot of it has to do with the passage of time,” Ms Baldwin told The Independent about the fact the bill cleared the procedural hurtle on an overwhelming bipartisan basis. “More and more of my Republican colleagues understand how important marriage is.”

A similar bill in the House passed in July with support from all House Democrats and only 47 Republicans; 157 House Republicans voted against it.

“I’m just happy to see justice is winning,” Democratic Senator Cory Booker of New Jersey told The Independent. “Love is winning.”

Congress worked relatively quickly to advance the legislation after the Supreme Court’s decision in June to strike down the constitutional right to abortion care, in which conservative Justice Clarence Thomas suggested that the court “should reconsider” substantive decisions on marriage equality and access to contraceptives.

The 1973 decision in Roe v Wade protected abortion rights under the due process clause of the 14th Amendment, which Justice Samuel Alito – in his opinion overturning that decision – argued should not include the right to abortion care.

Justice Thomas concurred, arguing that the court has a “duty to ‘correct the error’ established” in other due process cases. He suggested the nation’s high court should re-examine Lawrence v Texas, which outlawed anti-sodomy laws; United States v Windsor, which forced the federal government to recognise same-sex unions; and Obergefell v Hodges, which established the right to same-sex marriage.

“As discrimination lessens, it has also opened up people’s opportunities to be who they are,” Senator Tim Kaine of Virginia told reporters. “But then Justice Thomas was very candid with people about what should come next and if we didn’t take that seriously, it would be political malpractice.”

But “Justice Thomas’s opinion and this bill are not the end of this,” Ms Bonauto said.

Still, some Republicans scoffed at the need for the legislation.

“Gay marriages are not in jeopardy,” Senator Ron Johnson of Wisconsin, who just won re-election, told The Independent.

Cathryn Oakley, state legislative director and senior counsel at the Human Rights Campaign, told reporters on Wednesday that the bill brings some closure to the end of one chapter of LGBT+ discrimination in the US.

“But there are more chapters to this book,” she said.

The bill’s advancement speaks equally to “the enormity of the moment and also the enormity of the work to be done,” she added.

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