The Senate has passed historic federal protections for same-sex marriage, sending a powerful message about the progress Congress, and the country, have made on the issue.
The legislation — which guarantees recognition of same-sex marriages across state lines and by the federal government — advanced in the upper chamber on Tuesday, picking up support from 61 senators, including 12 Republicans. The vote is significant, marking the first time that the chamber has passed a bill to affirm marriage equality.
It underscores, too, how much Congress has shifted on the subject: Since 2009, legislation intended to protect same-sex marriage has stalled in the Senate due to a lack of momentum and opposition from both parties. The broad base of support for this bill is also notable because of how divided Congress has been on establishing protections for other rights including abortion rights and voting rights.
The legislation, known as the Respect for Marriage Act, now heads back to the House, which is expected to pass it later this week. Once enacted, it would repeal the 1996 Defense of Marriage Act, which defined marriage as a legal union between a man and a woman, and it would force states to recognize same-sex marriages and interracial marriages even if they sought to limit them. Additionally, the bill seeks to preempt any action the Supreme Court may take on precedents like Obergefell v. Hodges, which established the right to same-sex marriage in 2015.
“It’s a very important moment and it’s about mitigating the harms that the Supreme Court might do,” Jenny Pizer, the chief legal officer for Lambda Legal, an advocacy group for LGBTQ rights told Vox in mid-November.
Notably, this legislation could face legal challenges of its own, and it doesn’t go as far as Obergefell in requiring states to issue marriage licenses to same-sex couples. Still, the bill is a significant milestone that will provide an important shield for millions of Americans — and one that shows how much backing there is, both among lawmakers and the public, for defending marriage equality.
“Respect for Marriage is fundamentally about respect for human beings and their freedom to love who they love, marry who they want to marry, and still be treated with dignity by their government,” Sen. Elizabeth Warren (D-MA) told Vox ahead of the vote. “I’m really happy we’re doing this.”
The historic vote sends a powerful message
Earlier this year, 47 House Republicans, or roughly a fourth of the conference, voted in favor of this bill, a major shift for the party, even though the majority of the GOP still opposed it. The Senate vote underscores a similar dynamic, with 12 Republicans of 50 voting in favor of it.
Lawmakers are catching up to public opinion, which has changed dramatically in the last two decades: In 1996, 27 percent of people supported the legalization of same-sex marriage, according to Gallup polling. In 2022, that number is now 71 percent.
While many Republicans voted against the bill, the support it did pick up from the GOP speaks to how the party — and the country — has evolved on the issue. As representation of LGBTQ couples has grown, and as many people have gotten married in the wake of the 2015 Obergefell decision, Republicans increasingly face pressure to support same-sex marriage.
“On the heels of this midterm election, where the most extreme parts of the Republican Party did not fare as well as they might have hoped, there is an impetus for more moderate, temperate Republicans to step up and say they’re not bigots, and to differentiate themselves from that wing of the party,” says Katherine Franke, the director of the Center for Gender and Sexuality Law at Columbia University.
Sen. Susan Collins (R-ME), the top Republican cosponsor on the legislation, previously said she was encouraged by the outcome. “I was very pleased with the vote, we got over 60 ... that marks real progress,” she told Vox following a procedural vote earlier this month. “I was particularly pleased that we were able to get the endorsement of many religious organizations because of the religious liberty protections we put in the bill.”
Additional language, including an amendment that indicates nonprofit religious organizations do not need to provide services for marriages, was recently added to the legislation to assuage Republicans’ concerns.
“For me, it’s pretty simple, this advances religious liberty, not enough to some people’s liking, but better than under current law,” Sen. Todd Young (IN), a Republican senator who supported the bill, told Vox.
The bill offers protections if Obergefell is overturned
The legislation is aimed at providing enduring protections in case Obergefell were overturned.
It ensures that states would have to recognize same-sex marriages performed in other states, and guarantees that people would still receive the legal protections these unions provide. If a couple was married in a blue state that enshrined same-sex marriage rights into law and then moved to a red state that did not, for example, the red state would still have to recognize their marriage. The bill also guarantees that the federal government would recognize same-sex marriages, which affects everything from access to social programs to tax policy to people’s immigration statuses.
If Obergefell were rolled back, this legislation wouldn’t restore all the protections it provides. While Obergefell required all states to issue marriage licenses to same-sex couples, for example, this bill would only require states to recognize marriages that are already valid in other states.
Experts also note that this bill could be legally challenged if states try to argue that Congress doesn’t have the authority to force them to recognize valid marriages from other states. That challenge, Franke says, might not be based on the most ironclad legal theories, but is still possible. In the unlikely instance that both Supreme Court precedent and this legislation were overturned, states — more than 30 of which have same-sex marriage bans on the books — would be able to revert back to their individual laws.
Despite any legal challenges the law could face, however, Congress’s expected passage of it makes a vital statement about where the House and Senate stand on these protections, and lawmakers’ willingness to preserve them in the face of a judicial threat.
“It’s a relief,” Sen. Dick Durbin (D-IL) told Vox in mid-November. “It doesn’t go as far as the Obergefell decision but it’s a step in the right direction when you consider the threat of this Supreme Court.”
Update, November 29, 6:30 pm ET: This story, originally published on November 16, has been updated to include a vote on the bill’s passage in the Senate and comments from senators.