Same-Sex Marriage Bill Passes Senate After Bipartisan Breakthrough

The 61-to-36 vote sends the legislation back to the House, which is expected to approve it and send it to President Biden.

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Twelve Republicans joined Democrats in advancing a bill back to the House that would codify federal recognition for same-sex and interracial marriages.Haiyun Jiang/The New York Times

WASHINGTON — The Senate passed landmark legislation on Tuesday to mandate federal recognition for same-sex marriages, as a lame-duck Congress mustered a notable moment of bipartisanship before Democrats were to lose their unified control of Capitol Hill.

The 61-to-36 vote put the bill on track to become law in the final weeks before Republicans assume the majority in the House of Representatives at the start of the new Congress in January. It marked one of the final major legislative achievements for Democrats before Republicans shift the focus in the House to conducting investigations of President Biden’s administration and family members.

The bill must now win final approval by the House in a vote expected as soon as next week, which would clear it for Mr. Biden, who said he looked forward to signing it alongside the bipartisan coalition that helped shepherd it through the Senate.

In a statement, the president said the vote reaffirmed “a fundamental truth: Love is love, and Americans should have the right to marry the person they love.”

There was little question that the bill’s embrace in the Senate, where proponents had a breakthrough this month in drawing a dozen Republican supporters and overcoming a filibuster, gave it the momentum required to become law.

The bill would repeal the Defense of Marriage Act, which denied federal benefits to same-sex couples. It prohibits states from denying the validity of an out-of-state marriage based on sex, race or ethnicity. But in a condition that Republican backers insisted upon, it would guarantee that religious organizations would not be required to provide any goods or services for the celebration of any marriage, and could not lose tax-exempt status or other benefits for refusing to recognize same-sex unions.

“Because of our work together, the rights of tens of millions of Americans will be strengthened under federal law. That’s an accomplishment we should all be proud of,” said Senator Chuck Schumer, Democrat of New York and the majority leader.

Mr. Schumer audibly choked back tears on the Senate floor as he described how his daughter, who is married to a woman and expecting a baby with her wife, had lived in fear that their union could be reversed.

“I want them to raise their child with all the love and security that every child deserves,” Mr. Schumer said, noting that he was wearing the same purple tie he had worn to their wedding. “The bill we are passing today will ensure their rights won’t be trampled upon simply because they are in a same-sex marriage.”

Passage of the legislation in the Senate marked a watershed moment for a bill that began as a messaging exercise by Democrats determined to show their commitment to protecting same-sex marriage rights amid fresh threats from a conservative-leaning Supreme Court but has morphed into a broadly supported effort on the brink of becoming law.

Its path represents a significant shift in American politics and culture in which same-sex marriage, once considered a divisive political issue, has become so widely accepted by members of both parties that a measure to protect it has managed to attract decisive, bipartisan majorities in both the Senate and the House.

In the Senate, the legislation brought together an unusual coalition of Democrats and Republicans, including some deeply conservative and libertarian-leaning ones.

“For the sake of our nation today and its survival, we do well by taking this step,” said Senator Cynthia Lummis, Republican of Wyoming, who delivered an emotional speech about the need for more tolerance during what she called “turbulent times for our nation.”

Still, more than seven out of 10 Republican senators voted against the bill, underscoring how the party has continued to cater to religious conservatives who oppose same-sex marriage long after large majorities of the American public have come to support it. Senator Mitch McConnell of Kentucky, the minority leader, was among the opponents, despite hopes from Democrats and Republicans who supported it that he might vote “yes” on final passage.

Senator Michael Bennet, Democrat of Colorado, said that the recent mass shooting at an L.G.B.T.Q. nightclub in his state, in which five people were killed, underscored the importance of defending the rights of gay Americans.

“As a nation, we will never flourish if we choose to depend on a permanent underclass deprived of some or all of the freedoms others enjoy,” Mr. Bennet said.

A bipartisan group of lawmakers, led by Senators Tammy Baldwin, Democrat of Wisconsin and Susan Collins of Maine had worked quietly to build sufficient Republican support in the Senate since the summer, when 47 House Republicans joined Democrats in favor of the measure.

Their efforts paid off two weeks ago, when the senators agreed on a revised version that answered concerns among some Republicans that the measure would trample on the religious freedom of institutions that refuse to recognize same-sex marriages. That allowed the bill to clear its biggest hurdle in the Senate, drawing a filibuster-proof majority that effectively assured its enactment.

Senator Susan Collins answering questions from reporters in the Capitol.
“We are talking about our family members, our neighbors, our co-workers, our friends,” Senator Susan Collins said of the bill.Haiyun Jiang/The New York Times

Many Republicans still were not persuaded.

Senator Mike Lee, Republican of Utah, dismissed the bill as a response to a “fantasy” and an “imagined threat” that the right to same-sex marriage could be overturned by the Supreme Court.

“It is and will remain legal nationwide regardless of the outcome of this legislation before us,” Mr. Lee said. “On the other hand, we have current, real, sustained, ongoing assaults on religious freedom.”

Mr. Lee tried and failed to attach changes to the bill that he said would more strongly protect religious freedoms.

Ms. Collins pushed back, noting that the bill had received strong backing from faith-based groups, including the Church of Jesus Christ of Latter-day Saints, which historically has aggressively opposed gay rights. And she said that an amendment to the bill already included strong religious and conscience protections.

“We are talking about our family members, our neighbors, our co-workers, our friends,” said Ms. Collins. “It advances the rights of couples, same-sex and interracial couples, who are married to one another, and it advances religious liberty.”

Addressing her Republican colleagues who voted to support the bill, Ms. Collins said, “I know it has not been easy, but they’ve done the right thing.”

In the end, 12 Republicans voted for the measure: Senators Roy Blunt of Missouri; Richard M. Burr and Thom Tillis, both of North Carolina; Shelley Moore Capito of West Virginia; Ms. Collins; Joni Ernst of Iowa; Ms. Lummis; Lisa Murkowski and Dan Sullivan, both of Alaska; Rob Portman of Ohio; Mitt Romney of Utah; and Todd Young of Indiana.

Republican Senators Ben Sasse of Nebraska and Patrick J. Toomey of Pennsylvania — both of whom are retiring — did not vote, nor did Senator Raphael Warnock, Democrat of Georgia, who is still campaigning for re-election ahead of a Dec. 6 runoff.

After the bill passed the House over the summer, momentum on legislation flagged in September after Senate Democrats moved forward instead with the Inflation Reduction Act and put the marriage bill on hold until after the midterm elections, bowing to the request of Ms. Baldwin, who believed she would have more success attracting votes from Republicans after the balloting.

That calculation rankled some progressive Democrats, who said Republicans should have to answer to voters for their positions on the bill. Delaying it, for instance, spared Senator Marco Rubio of Florida and Senator Ron Johnson of Wisconsin, both of whom were up for re-election this year, a tough choice between embracing a measure that could anger their conservative base and opposing it, potentially alienating independent and moderate voters.

But Ms. Baldwin’s calculation paid off; the week after the election, the measure had more than enough Republican supporters to move forward.

That was in large part because of changes made during bipartisan negotiations, in which senators agreed to add the language ensuring that churches, universities and other nonprofit religious organizations could not be punished for declining to recognize same-sex marriages. They also added language to make clear that the bill does not require or authorize the federal government to recognize polygamous marriages.

The push to pass the legislation began over the summer, after Justice Clarence Thomas suggested in his opinion in the ruling that overturned Roe v. Wade, which had established a constitutional right to abortion, that the court also “should reconsider” precedents enshrining marriage equality and access to contraception.

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