On Nov. 29 the U.S. Senate passed the Respect for Marriage Act (RFMA) with a 61-36 vote, with 49 Democrats and 12 Republicans voting yes. Three Republicans put forward amendments to the bill and there was an attempted filibuster, but the amendments were rejected and the filibuster was defeated. The 12 Republicans who aligned with the Democrats allowed the bill to pass the 60 vote threshold. Senators Raphael Warnock (D-GA), Pat Toomey (R-PA) and Ben Sasse (R-NE) missed the vote.
The RFMA now goes to the House to be voted on again with a new amendment addressing religious concerns that were added prior to Thanksgiving. Once it passes the House, the bill goes to President Biden to be signed.
The RFMA was first voted on by the House in July. At that time, the bill passed 267-157, with 47 Republican votes. The House is expected to pass the RFMA as soon as next week.
The RFMA stipulates that the federal government recognize marriages that were legal in whatever state in which they were performed. The RFMA also secures all legal benefits of marriage “regardless of the couple’s sex, race, ethnicity, or national origin.” The bill also rescinds the federal Defense of Marriage Act (DOMA).
The bill does not, however, codify the right of same-sex couples to marry in all 50 states and the District of Columbia, as the Supreme Court determined was a constitutional requirement in Obergefell v. Hodges in 2015.
In a statement, Biden, who has supported marriage equality for a decade, said the vote was a “bipartisan achievement.”
He said, “With today’s bipartisan Senate passage of the Respect for Marriage Act, the United States is on the brink of reaffirming a fundamental truth: love is love, and Americans should have the right to marry the person they love.”
Biden also said, “For millions of Americans, this legislation will safeguard the rights and protections to which LGBTQI+ and interracial couples and their children are entitled.”
Prior to the vote, Senate Majority Leader Chuck Schumer uploaded a video on Twitter and said, “This is personal to me, and today I’m wearing the tie I wore at my daughter’s wedding to her wife.” Schumer’s daughter, Alison and her wife Elizabeth Weiland are expecting a child.
Speaker Pelosi also issued a statement, part of which read “Today, the Senate took an historic step forward in Democrats’ fight to defend freedom, dignity and equality. The Respect for Marriage Act will uphold marriage equality under federal law — tearing the bigoted, unconstitutional ‘Defense of Marriage Act’ off the books for good.”
Pelosi also explained the rationale for the RFMA, noting the link to the Supreme Court decision to overturn Roe v. Wade and referencing the 2015 Obergefell v. Hodges decision that legalized same-sex marriage in all 50 states and the District of Columbia.
Pelosi said, “Since the Supreme Court’s monstrous decision overturning Roe, extreme MAGA Republicans have set their sights on additional freedoms. In his opinion, Clarence Thomas explicitly called on the Court to reconsider the right to marriage equality handed down in its Obergefell decision.”
The Speaker, who represents San Francisco and is a long-time LGBTQ ally, said, “Once signed into law, the Respect for Marriage Act will prevent right-wing extremists from uprooting legal precedent, tearing away fundamental freedoms and upending the lives of families across the country.”
While the RFMA protects existing marriages and ends DOMA, it does not protect anyone from marriage bans that were in place prior to Obergefell. As with the recision of Roe, pre-existing laws opposing same-sex marriage — laws that are still on the books in 35 states — would reactivate.
In addition, the RFMA does not stipulate that states to allow same-sex marriage. If Obergefell is overturned, Congress — via RFMA or any other law — would not have the constitutional authority to mandate same-sex marriage licenses be issued or states to legislate. There is no provision within the RFMA to require marriage licenses be granted in states where bans are in place. The RFMA does state that states must recognize marriages that are valid where performed and that same-sex marriage will be legal in states like Massachusetts where it was legal prior to Obergefell.
But, as a Democrat aide told NBC News, if Obergefell falls it would allow same-sex couples to get married in a different state and be fully covered by the RFMA provisions even in a state like California or Texas that bans same-sex marriage.
“This will ensure that wherever you live, if you get married in a state where it’s legal, they have to recognize it wherever you are,” the Democratic aide said. “And you have the same rights, benefits, responsibilities and freedoms wherever you are.”
California state senator Scott Wiener, a Democrat who is openly gay, was targeted a week ago by alt-right MAGA Rep. Marjorie Taylor Greene who called Wiener a “communist groomer.” After the RFMA was passed in the Senate, Wiener said on Twitter, “Huge step by the U.S. Senate to protect marriage equality by requiring states to recognize same-sex marriages performed in other states.”
Wiener continued, saying “Yet, CA still needs to remove Prop 8 from our Constitution so Californians can always get married here, even if the Supreme Court goes rogue.”
The ACLU said, “This act is important progress — but LGBTQ rights are already under attack nationwide. We welcome this historic vote to protect the rights of LGBTQ people and our families, but the fight isn’t over.”
Support for same-sex marriage has expanded exponentially since the passage of DOMA in 1996 when it was 25%, to an all-time high of 71% in Gallup polling this year.
Sen. Tammy Baldwin (D-WI), the first and only out lesbian member of the Senate, was the sponsor of the bill. A five-member bipartisan committee that included the Senate’s only out bisexual, Kyrsten Sinema (D-AZ) and Republicans Susan Collins (R-ME), Rob Portman (R-OH) and Thom Tillis (R-NC) negotiated the bill to draw more Republicans to accept the bill.
“We’re making a really positive difference in people’s lives by creating the certainty that their ability to protect their families will be lasting,” said Baldwin.
The Republicans who backed the bill along with Collins, Portman and Tillis are Lisa Murkowski (AK), Mitt Romney (UT), Roy Blunt (MO), Cynthia Lummis (WY), Richard Burr (NC), Shelley Moore Capito (WV), Dan Sullivan (AK), Joni Ernst (IA) and Todd Young (IN).
In a statement, Romney said ,“While I believe in traditional marriage, Obergefell is and has been the law of the land upon which LGBTQ individuals have relied. This legislation provides certainty to many LGBTQ Americans, and it signals that Congress — and I — esteem and love all of our fellow Americans equally.”
Schumer tweeted a photo of himself on the phone Tuesday night and said, “I just called my daughter and her wife — who are expecting a baby next spring — to let them know that this Senate passed the Respect for Marriage Act! What a great day!”
GLAAD President and CEO Sarah Kate Ellis tweeted, “This vote also shows that our leaders, regardless of political affiliation, can get behind common sense legislation that moves our country forward and affirms all families. But our work is not done: Congress must bring the Equality Act to a vote.”