The Senate takes a historic vote to make progress on same-sex marriage protections

The Senate has advanced landmark federal protections for same-sex marriage and delivered a strong message about the progress Congress and the country have made on this issue.

The legislation — which would guarantee the recognition of same-sex marriages across state lines and by the federal government — went through a procedural vote on Wednesday and received support from 62 senators, including 12 Republicans. Depending on how the timing works out, the Senate could vote on final approval of the bill before Thanksgiving, or it could be delayed until after the holiday. However, Wednesday’s vote is important because it shows how much bipartisan support there is for the bill, and shows that it has a filibuster-proof majority.

The vote also underscores how much Congress has developed on the issue: Since 2009, same-sex marriage protection legislation has stalled in the Senate due to a lack of momentum and opposition from both parties. The broad support for this bill is also notable because of the division in Congress over establishing protections for other rights, including abortion rights and the right to vote.

Because the House passed the bill earlier this year, it will become law once the Senate approves it and sends it to President Joe Biden’s desk. Once passed, the legislation would repeal the 1996 Defense of Marriage Act, which defined marriage as a legal union between a man and a woman, and would force states to recognize same-sex and interracial marriages even if they tried to to limit. .

A right to same-sex marriage was instituted by Obergefell against Hodges in 2015. But in the wake of the Supreme Court’s decision being reversed in June Roe against WadeJudge Clarence Thomas indicated in a court opinion that he might be interested in reviewing the decision. Concern that same-sex marriage, like abortion, could soon be decided at the state level spurred lawmakers to codify protections into the law.

“This may be the first time there has been a standalone bill to affirm legal rights for same-sex couples,” said Jenny Pizer, the chief legal officer for Lambda Legal, an LGBTQ rights advocacy group. “It’s a very important moment and it’s about mitigating the damage that the Supreme Court could do.”

In particular, the bill could face legal challenges, and it doesn’t go as far as Obergefell by requiring states to issue marriage licenses to same-sex couples. Still, the legislation is an important milestone that will provide an important shield for millions of Americans — and one that shows just how much support there is, both among legislators and the public, for championing marriage equality.

The historic mood sends a powerful message

Earlier this year, 47 House Republicans, or about 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 out of 50 voting in favor.

Lawmakers are catching up with public opinion, which has changed dramatically over the past two decades: 1996, According to a Gallup poll, 27 percent of people supported the legalization of same-sex marriage. In 2022, that number is now 71 percent. “It’s time we stood with the majority of America and protect the progress we’ve made,” said Senator Tammy Baldwin, one of the bill’s top Democratic sponsors. said in a message.

While many Republicans still voted against the bill, the support it received from the GOP speaks to how the party — and the country — has shifted on the issue. As the representation of LGBTQ couples has grown, and so many people have gotten married in the wake of the 2015 Obergefell Republicans are under increasing pressure to support same-sex marriage.

“Following this midterm election, where the most extreme segments of the Republican Party didn’t fare as well as they hoped, there’s an impetus for more moderate, moderate Republicans to come forward and say they’re not bigots. and to stand out from that wing of the party,” said Katherine Franke, the director of the Center for Gender and Sexuality Law at Columbia University.

The bill provides protection if Obergefell is overthrown

The legislation aims to provide lasting protection just in case Obergefell were overthrown.

It requires states to recognize same-sex marriages performed in other states, and guarantees that people will still receive the legal protections offered by these unions. If a couple was married in a blue state that enshrined same-sex marriage rights in law and then moved to a red state that did not, the red state would still have to recognize their marriage. The bill also guarantees that the federal government will recognize same-sex marriages, affecting everything from access to social programs to tax policies to people’s immigration status.

If Obergefell were reversed, this legislation would not restore all the protection it affords. While Obergefell requires 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 challenged legally if states try to argue that Congress doesn’t have the power to force them to recognize valid marriages from other states. That challenge, Franke says, may not be based on the most ironclad legal theories, but it is still possible. In the unlikely event that both Supreme Court precedent and this legislation were overturned, states – more than 30 of which have a ban on same-sex marriage on the books – could return to their individual laws.

Despite any legal challenges the law could face, its anticipated passage by Congress makes a vital statement about where the House and Senate stand on these protections, and the willingness of lawmakers to keep them in light of a legal threat.

“These are political moments about moving a narrative, but also about a bill becoming legally enforceable,” says Franke.