The Senate on Wednesday passed the Respect For Marriage Act, which would fortify marriage rights as the conservative Supreme Court that has signaled it could move to restrict them. The amended bill now heads back to the House, which will vote to send it to President Joe Biden for final approval.
The advancement of the bill is a notable feat considering it faced the 60-vote filibuster in the Senate, which meant at least 10 Republicans needed to split with their party and support the bill. The bill passed by a vote of 62-37. Sen. Ben Sasse (R-Neb.) was absent attending to his wife who according to a statement from Sasse’s office to Politico “had a significant — but non-life-threatening — seizure” over the weekend.
The legislation aims to officially repeal the 1996 Defense of Marriage Act (DOMA), which defined marriage as being exclusively between a man and a woman. DOMA was superseded in 2015 by the Supreme Court’s ruling in Obergefell v. Hodges, which established same-sex marriage a right under the 14th Amendment. The bill would require states to recognize the validity of a marriage so long as it was legal in the state it took place in.
Following the death of Roe v. Wade in June, Justice Clarence Thomas indicated that he believed every Supreme Court decision justified under the 14th Amendment’s substantive due process precedent should be reconsidered. These cases include landmark civil rights rulings including the right to contraception, the overturning of sodomy laws, and the right to marriage for same-sex couples.
Thomas’ indication that the court could potentially reassess these rights was a driving factor in the reintroduction of the RMFA, which was originally penned in 2009 and had failed to pass the muster of Congress on various occasions. “I, along with my Democratic colleagues, will not be idle bystanders while the constitutional rights and freedoms that underpin our democracy are shredded,” Rep. Jerrold Nadler (D-N.Y.) said in July following the passage of the act in the House. Nadler implored the Senate to “provide much needed stability and certainty for the families that have been shaken to their core by Justice Thomas’ concurring opinion in Dobbs v. Jackson.”
Republicans criticized the RFMA as an attack on religious liberty, with some agreeing to vote for the bill if carve outs were made protecting religious liberty. Responding to concerns, a bipartisan group of senators delayed the vote until after the midterms, crafting an amendment to the bill addressing the question. In a joint statement released Tuesday, Sens. Tammy Baldwin (D-Wisc.), Susan Collins (R-Maine), Rob Portman (R-Ohio), Kyrsten Sinema (D-Ariz.), and Thom Tillis (R-N.C.) affirmed that the bill includes “commonsense language to confirm that this legislation fully respects and protects Americans’ religious liberties and diverse beliefs, while leaving intact the core mission of the legislation to protect marriage equality.”
Sen. Mike Lee (R-Utah) wrote on his personal Twitter account, however, that the bill poses “legal threats for holding sincere religious beliefs or convictions,” and that the existing protections “can only be described as severely anemic.”
Religious institutions in Mike Lee’s own state disagree. In a surprise move the Mormon Church came out in support of the bill on Tuesday, stating that while same-sex marriage remains outlawed within their religion they are reassured the RFMA “includes appropriate religious freedom protections while respecting the law and preserving the rights of our LGBTQ brothers and sisters.”
Lee voted no, but his colleague in Utah, Mitt Romney, broke from his party and voted in favor of the legislation, releasing a statement explaining that his colleagues in the Senate assuaged his concerns about religious liberty and that while he believes “in traditional marriage Obergefell is and has been the law of the land upon which LGBTQ individuals have relied,” and that the legislation “provides certainty to many LGBTQ Americans.”