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Senate passes same-sex marriage bill; 12 Republicans support

Chuck Schumer
Senate Majority Leader Chuck Schumer, D-N.Y., speaks to reporters after meeting with Senate Democrats at the U.S. Capitol Nov. 29, 2022, in Washington, D.C. |

The United States Senate approved the so-called Respect for Marriage Act Tuesday, making federal protections for same-sex marriages one step closer to reality and causing concern for religious liberty advocates. 

The Senate voted 61-36 to pass the bill, with 12 Republicans joining all Democrats in supporting the measure: Sens. Roy Blunt, R-Mo., Richard Burr, R-N.C., Shelley Moore Capito, R-W.Va., Susan Collins, R-Maine, Joni Ernst, R-Iowa, Cynthia Lummis, R-Wyo., Lisa Murkowski, R-Alaska, Rob Portman, R-Ohio, Mitt Romney, R-Utah, Dan Sullivan, R-Alaska, Thom Tillis, R-N.C., and Todd Young, R-Ind.

Sens. Ben Sasse, R-Neb., Pat Toomey, R-Pa., and Raphael Warnock, D-Ga., did not vote on the legislation.

The "Respect for Marriage Act" codifies a right to same-sex marriage into federal law while stating that “Nothing in this Act, or any amendment made by this Act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law.” 

The bill identified “churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization” as those protected from having to perform same-sex marriages or services related to such marriages.

Critics of the bill warned that it doesn't go far enough to provide religious liberty protections for Christian business owners who do not work in explicitly faith-based industries. Ahead of the final vote on the legislation, the Senate considered religious liberty amendments to the bill offered by Sens. James Lankford, R-Okla., Mike Lee, R-Utah, and Marco Rubio, R-Fla., which attempted to address such concerns. 

According to the Senate Cloakroom, the Lankford and Rubio amendments required a simple majority of 51 votes to pass, while the Lee amendment had to secure 60 votes to pass. 

The Lankford Amendment would have clarified that the government does not have the power to alter an organization’s tax-exempt status in retaliation for its support for traditional marriage and declared that “for purposes of this Act, and any amendment made by this Act, no faith-based organization shall be considered to be a government actor because the organization entered into a partnership with a government.” The Lankford Amendment failed to pass, with 52 senators voting against it and 45 senators supporting it.

Sens. Collins, Murkowski and Portman joined all Democrats in opposing the Lankford Amendment. In addition to abstaining from the vote on the "Respect for Marriage Act" as a whole, Sens. Sasse, Toomey and Warnock did not vote on the Lankford Amendment or any of the amendments put before the Senate Tuesday. 

The Rubio Amendment would have abolished a section of the bill giving individuals a private right of action to sue anyone who refuses to recognize a same-sex marriage. The Senate rejected the amendment in a 52-45 vote against it, with Collins, Murkowski and Portman breaking with their party to oppose it. 

The Lee Amendment would have made clear that “the Federal Government shall not take any discriminatory action against a person, wholly or partially on the basis that that person speaks, or acts, in accordance with a sincerely held belief, or moral conviction, that marriage is or should be recognized as a union of … one man and one woman.” The Senate rejected the Lee Amendment in a 49-48 vote against it, with Collins joining Democrats in voting against it and Sen. Joe Manchin, D-W.Va., joining Republicans in supporting it.

The legislation, which differs from the version passed by the U.S. House of Representatives on July 19, must return to the lower chamber for approval before it can go to President Joe Biden’s desk for his signature. The bill is expected to pass the Democrat-controlled House, as it previously approved the legislation in a 267-157 vote. Forty-seven Republicans joined Democrats in supporting the measure. 

Congressional Democrats made the passage of the bill a top priority following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health. In the decision, which reversed the Roe v. Wade ruling that legalized abortion nationwide, Justice Clarence Thomas authored a concurring opinion chastising the “legal fiction” of “substantive due process” that underpinned the legal analysis behind Roe and the 2015 Obergefell v. Hodges decision that legalized same-sex marriage nationwide. 

Thomas suggested that following Dobbs, “we should reconsider all of this Court’s substantive due process precedents,” including Obergefell. He also indicated that the justices should examine whether “other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.” At the same time, Thomas agreed with the majority opinion that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Religious liberty advocates, including the law firm Liberty Counsel, have warned that the bill spells doom for Christian business owners with deeply held beliefs that marriage constitutes a sacrament between a man and a woman and therefore, they cannot in good faith perform services that in any way celebrate or affirm same-sex marriages. “This bill will not protect the religious beliefs of people like the Christian website designer with 303 Creative,” Liberty Counsel asserted in a statement.

Liberty Counsel was referring to Lorie Smith, a website designer based in Colorado who is taking her case against her state’s anti-discrimination law interpreted to require businesses like hers to create websites advertising same-sex marriages all the way to the Supreme Court. The law firm maintained that the so-called Respect for Marriage Act “will overturn any victory from that case, and [Smith] will be forced to create websites celebrating same-sex marriage.” 

Ryan Foley is a reporter for The Christian Post. He can be reached at: ryan.foley@christianpost.com

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