Senate Passes Same-Sex Marriage Backstop In Face Of Right-Wing Supreme Court

The Senate passed the Respect for Marriage Act Tuesday, which will enshrine some elements of the landmark Obergefell v. Hodges Supreme Court decision into law. 

The final vote was 61 to 36, with Sens. Raphael Warnock (D-GA), Ben Sasse (R-NE) and Pat Toomey (R-PA) not voting.

The same 12 Republicans voted for final passage as did to advance the bill through the first filibuster: Sens. Roy Blunt (R-MO), Richard Burr (R-NC), Shelley Moore Capito (R-WV), Susan Collins (R-ME), Joni Ernst (R-IA), Cynthia Lummis (R-WY), Lisa Murkowski (R-AK), Rob Portman (R-OH), Mitt Romney (R-UT), Dan Sullivan (R-AK), Thom Tillis (R-NC) and Todd Young (R-IN).

The bill will now bounce back to the House, but is on a glide path to passage.

The bill requires that people be considered married in any state as long as the marriage is valid in the state it was performed. 

That’s a step down from the protections in Obergefell, which also require all states to grant same-sex marriages. Should the Supreme Court overturn Obergefell, which Justice Clarence Thomas openly rooted for in the Dobbs decision, states would be able to reinstate bans on same-sex marriage. Similar to the current abortion landscape, couples living in states hostile to same-sex marriage would have to travel elsewhere to be legally wed.  

But the legislation also repeals the 1996 Defense of Marriage Act, which defines marriage as a union between a man and a woman, and gives states the right not to recognize same-sex marriages performed in others. The law is still on the books, though considered unconstitutional for now. 

Senate Majority Leader Chuck Schumer (D-NY) had booted the vote until after the midterms when it became clear that it had a greater chance of attracting Republican support when they were less wary about alienating conservative voters. He teed up the legislation for a first vote earlier this month, indicating that the Senate negotiators had amassed the necessary support. 

“As we have already seen this year, what the Court has decided in the past can be easily taken away in the future,” he said Tuesday from the Senate floor. “So today’s vote is deeply personal for many of us in this chamber.”

He said that he was wearing the same tie he wore when his daughter married her wife, one of the “happiest moments of his life.”

The push to codify same-sex marriage rights came directly from Dobbs, in which Thomas also urged the Court to revisit the cases that established the right to private same-sex relationships and the right to access contraception. 

Senate Democrats worked to enshrine abortion protections into law this spring — an effort which even one of the last remaining anti-abortion Democrats, Sen. Bob Casey (D-PA), cosigned — but Sens. Joe Manchin (D-WV) and Kyrsten Sinema’s (D-AZ) enduring support for the filibuster ensured that the bill failed. 

The same-sex marriage legislation was just one of the many items on Democrats’ lame duck session to-do list, all the more urgent since Republicans have flipped the lower chamber. Alongside reforming the Electoral Count Act and keeping the government funded through December, the most pressing task before them is addressing the debt ceiling before Republicans can weaponize it. If Democrats manage to use reconciliation to raise the debt ceiling so high that it ceases to become a recurring problem, they’ll eliminate the possibility that a Republican House could take it hostage, demanding political concessions in exchange for not sending the United States tumbling into default.

“Let’s make this the most productive lame-duck session of Congress in decades,” Sen. Elizabeth Warren (D-MA) tweeted recently. “And let’s start by lifting the debt ceiling to prevent Republicans from taking our economy hostage.”