A bipartisan majority of the Senate approved the Respect for Marriage Act on Nov. 29 after narrowly rejecting a trio of detailed amendments that sponsors claimed were required to protect the right of religious freedom of practice and expression.
On a vote of 61–36, the majority—including 49 Democrats and 12 Republicans—adopted a measure approved by the House of Representatives in July and that President Joe Biden has promised to sign. The House still must OK the Senate’s minor revisions of the original proposal.
The vote on the controversial proposal capped a series of procedural hurdles requiring at least 60 votes that proponents overcame with support from the chamber’s 50 Democrats and the dozen Republicans who supported final passage.
The dozen Republican senators were Sens. Roy Blunt (R-Mo.), Joni Ernst (R-Iowa), Dan Sullivan (R-Alaska), Cynthia Lummis (R-Wyo.), Rob Portman (R-Ohio), Shelley Moore Capito (R-W.Va.), Susan Collins (R-Maine), Thom Tillis (R-N.C.), Richard Burr (R-N.C.), Lisa Murkowski (R-Alaska), Mitt Romney (R-Utah), and Todd Young (R-Ind.).
Late on Nov. 28, during a lengthy roll call on a cloture motion to limit debate, three of the dozen GOP senators supporting the bill withheld their votes until proponents agreed to allow floor votes on amendments offered by Sen. Mike Lee (R-Utah), Sen. James Lankford (R-Okla.), and Sen. Marco Rubio (R-Fla.). Each of the proposed amendments was designed to ease the threats posed by the proposal to religious freedom.
Throughout the debate on the proposal, opponents claimed the bill will inflict profound damage on freedom of religion, including after proponents accepted an amendment they said would remedy such fears.
In a floor speech delivered before the voting began on the amendments, Lankford asked, “Is today about respecting the rights of all or about silencing some and respecting others?”
The Oklahoma Republican told colleagues: “There are three major problems in the bill on the issue of religious liberty. If these three things are not changed in this bill, it will put religious liberty at great risk for millions of Americans who … have sincerely held religious beliefs.”
The first of the three, according to Lankford, is the bill’s reference to “any individual or entity acting under the color of state law” would be subject to penalties for failing to support same-sex or interracial marriage.
“This would be an entity that a state hires to fulfill something for them. This could be a private prison, for example, it could also be an adoption agency [or] foster care agencies. It could be an entity that actually does housing for immigrants families, a homeless shelter contracted by the state to provide services. It could be any number of entities,” Lankford said.
Many such agencies are faith-based, and the Respect for Marriage Act “would be a new restriction on those religious entities that formally held contracts that then would very well be pushed out from providing those services … or abandoning their faith.”
The second problem Lankford pointed to was the proposal’s creation of a new “private right of action” for “an individual who senses that they have been harmed” by a covered entity.
“Now, it’s not defined what ‘harm’ means in this new statute, it just says if someone feels they’ve been harmed, they would now have the opportunity to sue someone else,” Lankford said.
“If Congress creates a new right to sue people, there will be a lot of lawsuits … For anyone who believes this new right to sue people won’t be used and won’t be used quickly by lawyers and outsider groups all around the country, you are kidding yourself. What it really does is it silences any individual who may disagree and it discourages any faith-based entity from cooperating with government.”
The third problem lies in the bill’s language saying “If a benefit does not arise from a marriage.” Lankford said he asked multiple lawyers what that phrase means and received widely different answers.
“It is clear what it doesn’t mean. When it says all these different rights being granted that don’t include marriage, it doesn’t include your belief about marriage,” Lankford pointed out. The result is beliefs about marriage can still be the basis for litigation against individuals and entities.
Lankford’s amendment needed only a simple majority but was defeated on a 45–52 vote. No Democrat supported it, while Republican Sens. Portman, Collins, and Murkowski voted against it.
The Lee amendment gained the support of all 12 of the Republican supporters of the proposal but the only Democrat to support it was Sen. Joe Manchin (D-W.Va.). The amendment thus failed 48–49. The Rubio amendment also failed on a 48–49 vote.
Baldwin said the amended proposal is needed to “give the millions of Americans in same-sex and interracial marriages the certainty that they will continue to enjoy the freedoms, rights, and responsibilities afforded to all other marriages.”
The Supreme Court’s 2015 Obergefell v. Hodges decision legalized same-sex marriage nationwide. The Supreme Court’s 1967 Loving v. Virginia legalized interracial marriage in America.
Not voting were Sens. Pat Toomey (R-Pa.), Ben Sasse (R-Neb.) and Raphael Warnock (D-Ga.).