The measure was expected to be taken up by the Senate on Nov. 17 but the legislative day, the last before Thanksgiving recess, came and went with no vote.
Senate Majority Leader Chuck Schumer (D-N.Y.) said the same day that passing the bill would be “one of the more significant accomplishments of this Senate to date,” but did not explain the delay.
The delay is surprising in view of the wide support the same measure received just a day before when twelve Republicans joined all 50 Democrats in voting to advance the measure over the filibuster threshold.
The bill would repeal the definition of marriage as being between a man and a woman and replace it with language inclusive of gay marriage.
“The bill also repeals and replaces provisions that do not require states to recognize same-sex marriages from other states with provisions that prohibit the denial of full faith and credit or any right or claim relating to out-of-state marriages on the basis of sex, race, ethnicity, or national origin,” the description of the bill on the Senate website says.
In addition to same-sex marriages, the bill grants new federal protections to interracial marriages.
As the upper chamber moved toward a vote on the legislation after months of negotiations, its fate still hung in the balance.
In the House, 47 Republicans voted for it.
However, its real test was always going to be in the Senate, where Republicans have the power to shoot down the legislation if at least 10 Republicans fail to support it.
On Nov. 16, it cleared this hurdle after 12 Republicans joined all 50 Democrats to order an end to debate on the measure.
Republican Support
Some Senate Republicans were expected to support the bill off the bat.These include moderates like Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), who have often broken with their party on key social issues.
The bill’s two main sponsors were Collins and Sen. Tammy Baldwin (D-Wis.).
Sens. Thom Tillis (R-N.C.) and Rob Portman (R-Ohio), who are retiring at the end of the 117th Congress, were also sponsors of the bill.
The bill “recognizes the unique and extraordinary importance of marriage on an individual and societal level,” Collins said in a floor speech encouraging others to vote for the bill.
“Religious liberty is a key pillar of our Constitution, and I’m confident that nothing in this bill will limit the freedom of religion under the First Amendment,” Portman said in a floor speech after Collins. Like many of his GOP peers supporting the bill, Portman is leaving office for the last time in January 2023.
A sticking point for some Republicans during negotiations was the demand that it includes key protections for religious institutions and churches.
Ahead of the cloture vote, Sen. Mitt Romney (R-Utah), who often defects from his party, tied his support for the bill to this condition.
Other Republicans, including Sens. Roy Blunt (R-Mo.) and Joni Ernst (R-Iowa) demurred from telling reporters how they would vote on advancing the bill.
Ultimately, the bill garnered enough support to pass the 60-vote filibuster threshold easily.
- Sen. Roy Blunt (R-Mo.)
- Sen. Richard Burr (R-N.C.)
- Sen. Shelley Moore Capito (R-W. Va.)
- Sen. Susan Collins (R-Maine)
- Sen. Joni Ernst (R-Iowa)
- Sen. Cynthia Lummis (R-Wyo.)
- Sen. Lisa Murkowski (R-Alaska)
- Sen. Rob Portman (R-Ohio)
- Sen. Dan Sullivan (R-Alaska)
- Sen. Mitt Romney (R-Utah)
- Sen. Thom Tillis (R-N.C.)
- Sen. Todd Young (R-Ind.)
Criticism
The vote came as some lawmakers still had concerns about its long-term impact on religious institutions.Critics of the bill warned that it might threaten the tax-exempt status or other benefits of organizations with opposition to same-sex marriage.
Zack Pruitt, a senior counsel at the Alliance Defending Freedom—a non-profit critical of the bill—told The Epoch Times in an interview that the bill posed such a risk to faith-based organizations.
“Well, it’s presented as a simple codification of Obergefell,” Pruitt said. “But the bill does far more than that. We believe that it jeopardizes those faith-based organizations and individuals that want to live and work according to the faiths.”
Pruitt explained how some provisions in the bill could be used to force faith-based adoption agencies to permit adoptions for same-sex couples that go against their religious beliefs.
“The bill applies to anyone acting under color of state law, which lower courts have adjudicated in several instances to apply to adoption agencies and foster care organizations,” Pruitt said.
Because of this, he continued, “we believe that there’s many of those foster care and faith-based adoption agencies that do not place children with same-sex couples those they will be under direct risk of this bill.”
When asked about the amendment intended to protect religious liberty, Pruitt replied, “The amendment merely gives lip service to religious liberty.”
All protections for religious liberty, Pruitt argued, “fall short of any kind of substantive protection.”
During a Nov. 17 speech on the Senate floor opposing the bill, Sen. Mike Lee (R-Utah) tied his opposition to the same concerns.
The bill, Lee said, “does not strike [the] balance” between protecting same-sex couples and also protecting religious liberty.
“It purports to do so, and it fails.”
Democrats Worried About 14th Amendment Protections
The legislation was one of a flurry of bills passed over the summer by the Democrat-controlled lower chamber. It came after the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that abortion was not a federally-protected right.Because Roe v. Wade, which codified the legal right to an abortion, relied on the 14th Amendment “equal protection” clause, some Democrats were concerned that the Dobbs ruling could be a precursor to overturning other 14th Amendment cases.
For instance, the same standard used in Roe v. Wade was developed in Griswold v. Connecticut, which ruled that people have the Constitutional right to access birth control.
Later cases like Lawrence v. Texas—which codified a federal right to sodomy—and Obergefell v. Hodges—which made same-sex marriage a federal right—relied on the same 14th Amendment standards laid out in Griswold.
Adding to Democrats’ concerns was Justice Clarence Thomas’ concurring opinion in Dobbs v. Jackson. While the majority opinion emphasized that other 14th Amendment precedents were not under threat, Thomas wrote that the court should indeed expand the Dobbs precedent to other cases.
In his concurring opinion to Dobbs’s majority ruling, Thomas said that “‘substantive due process’ is an oxymoron that lack[s] any basis in the Constitution” and that “the Due Process Clause does not secure any substantive rights.”
For this reason, Thomas said that “in future cases, [the justices] should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” and that “because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
Rep. Jerry Nadler (D-N.Y.), the sponsor of the bill in the House, made clear that this decision influenced Democrats’ push to pass the legislation.
“As this Court may take aim at other fundamental rights, we cannot sit idly by as the hard-earned gains of the Equality movement are systematically eroded. If Justice Thomas’s concurrence teaches anything it’s that we cannot let your guard down or the rights and freedoms that we have come to cherish will vanish into a cloud of radical ideology and dubious legal reasoning,” Nadler continued.
The bill is the first major package of its kind among the bills proposed in response to Roe v. Wade that seem to be on track to President Joe Biden’s desk. Since the Senate did not vote on the package on Nov. 17, it will likely not be passed until after lawmakers return at the end of the month.
After its passage through the Senate, it will need to return for a new vote in the House before it can go to the president. It is likely to pass easily through the House in view of the broad support it received in June.
Biden has indicated his support for the bill and is expected to sign it if it passes both chambers.
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