Senate May Take Up Federal Same-Sex Marriage Bill This Month
A compromise to protect religious freedom may bring on more Republican support.
A bill to formally recognize same-sex marriage at the federal level may make it to the Senate floor within weeks as lawmakers work on compromises that could get enough Republican support to avoid a possible filibuster.
The Washington Post reports that proponents of the Respect for Marriage Act believe they can get 10 votes among Republican senators if the bill is amended to provide some protections for religious freedoms. "But those Republicans won't announce support for the legislation until the vote, so they can be shielded from attacks that could pressure them to vote otherwise," the Post adds.
Thanks to Obergefell v. Hodges (2015), recognition of same-sex marriage is the law of the land in all 50 states. But the recent Dobbs ruling striking down Roe v. Wade has many people worried whether the Obergefell is in danger. Justice Clarence Thomas wrote a concurrence in Dobbs arguing that the logic of Dobbs should encourage the court to reconsider Obergefell.
Because national same-sex marriage recognition was the result of a Supreme Court decision, many states still have laws banning it on the books, even if they aren't actually in effect at the moment. Should Obergefell be overturned (or another decision, United States v. Windsor, which ruled the federal Defense of Marriage Act was unconstitutional), we could end back up in a messy space where some states have laws that forbid legal recognition of same-sex marriages that took place in other states where they're legal.
The Respect for Marriage Act would formally repeal the Defense of Marriage Act and specify that the federal government will recognize same-sex marriages from any state where they're legal. While it wouldn't force states to legalize same-sex marriage recognition within their own borders, it would require states to recognize marriages from states that do legally allow them (something states already typically do for heterosexual marriages despite the laws regarding those marriages being different from state to state).
The Respect for Marriage Act passed the House and managed to pull in 47 Republican votes. The Senate, though, is harder, and as The Washington Post notes, some Republicans aren't revealing how they'll vote. It currently has two Republican sponsors in the Senate—Sens. Susan Collins of Maine and Rob Portman of Ohio.
The Post doesn't detail what sort of compromises are under consideration, but we do know that a number of Republicans who support LGBT rights also support compromises that do not force private small businesses, churches, or religious organizations to provide goods or services to same-sex couples if they object to same-sex marriages. The Fairness for All Act, for example, is a compromise bill pushed forward by some Republicans that would add gay and trans people as categories to federal anti-discrimination laws but would provide some religious exemptions.
Similarly, it's easy to imagine a compromise marriage recognition bill detailing that no church or religious leader can be forced to host or provide a gay wedding and that small businesses with religious owners (like a bakery, florist, or photographer) can't be forced to provide goods or services to LGBT people.
This would be a good compromise. There is no dearth of people in the wedding industry willing to take money from gay couples to give them the celebration of their dreams. This is not a massive civil rights crisis that requires government intervention. The Supreme Court later this year will be hearing a case about whether Colorado can force a web designer to host images of same-sex weddings against her own religious objections. She will probably win.
Passing the Respect for Marriage Act may feel unnecessary, but it's actually good to have a law on the books rather than expecting the Supreme Court to hold fast on a precedent. This is what Congress is for. The Dobbs decision has shown us that what a handful of judges decide can be overturned by another handful of judges. Laws, written by a body voted into office, are a much more consistent and stable way to maintain a practice the public already widely supports.