Gay Marriage

Federal Gay Marriage Bill Returns to Senate for Lame-Duck Session Vote

If passed, same-sex couples wouldn’t need to worry about Supreme Court precedents.


After suspending consideration of a bill that would legally enshrine federal recognition of same-sex marriage in September, Senate supporters yesterday announced they were moving forward again. Senate Majority Leader Chuck Schumer (D–N.Y.) officially filed the Respect for Marriage Act on Monday to start the process of trying to get it passed.

Same-sex marriage recognition is legal across the United States, but it's the result of two Supreme Court decisions: United States v. Windsor from 2013, and Obergefell v. Hodges from 2015. The Defense of Marriage Act (DOMA), passed by Congress in 1996 and signed by then-President Bill Clinton, prohibits federal recognition of same-sex marriages performed by states. Even though it's unenforceable, it's still currently on the books.

After the Supreme Court struck down Roe v. Wade earlier in the year, the decision raised concerns that any number of past precedents may be at stake. Justice Clarence Thomas openly invited the court to reconsider some past decisions, and among them he specifically mentioned Obergefell.

And so interest grew in passing a new bill that formally struck DOMA from the books for good and replaced it with official federal recognition. The Respect for Marriage Act would require the federal government to legally recognize same-sex marriages performed in states where it's legal. Note that it wouldn't require states to legalize same-sex marriage, but it would require states to recognize such marriages from other states if they were legally performed. Some states have their own bans that would likely come back into force if Obergefell were overturned.

The Respect for Marriage Act passed the House in July this year, supported by all the Democrats and 47 Republicans. In order to pass the Senate, the bill needs 10 Republican supporters to avoid the filibuster. This ended up being a problem, because even though a majority of Republican Americans now support same-sex marriage, the party itself is having a bit of an identity crisis, and apparently enough Republican senators weren't willing to step up before the election.

And so, rather than attempting to make it a campaign issue—which could have alienated potential Republican allies—supporters pulled the bill from consideration in the Senate.

But now that the election is over and it seems as though the less culture-war-obsessed Republicans seem to have fared well, the bill's supporters think they can find the 10 Republicans they need.

A group statement from the bill's Senate proponents, Sens. Tammy Baldwin (D–Wis.), Susan Collins (R–Maine), Rob Portman (R–Ohio), Kyrsten Sinema (D–Ariz.) and Thom Tillis (R–N.C.), reads in part, "Through bipartisan collaboration, we've crafted commonsense language to confirm that this legislation fully respects and protects Americans' religious liberties and diverse beliefs, while leaving intact the core mission of the legislation to protect marriage equality. We look forward to this legislation coming to the floor and are confident that this amendment has helped earn the broad, bipartisan support needed to pass our commonsense legislation into law."

The bill has been tweaked to make it more palatable for conservatives. It has a section making it clear that nonprofit religious organizations like churches and similar entities "shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage." It also specifically states that nothing in the act shall be "construed to require or authorize Federal recognition of marriages between more than 2 individuals." So no federal recognition of polygamy is under consideration. Wimps.

As we can see from the bill's Senate proponents, it already has three Republicans on board. We'll see soon if they can grab another seven. And given that dozens of Republicans supported it in the House last time, it seems unlikely that there will be much resistance when it comes time to reconcile the bill in this lame-duck session, even as Republicans prepare to take majority control.