The United States Senate held votes to advance the Respect for Marriage Act (RFMA) on Wednesday and Thursday, Nov. 16 and 17, setting the bill up for a final Senate vote that majority leader Chuck Schumer is hoping to hold Monday, Nov. 28 after the break for U.S. Thanksgiving. The bill will give a degree of legal certainty to same-sex couples who’ve experienced increasing alarm after Supreme Court Justice Clarence Thomas mused in June that the court should reconsider its 2015 decision that legalized same-sex marriage nationwide.
The Senate added amendments to the RFMA that reiterates assurances for non-profit religious organizations that they will not be forced to recognize same-sex marriages, and that the federal government will not recognize polygamous marriages before approving the bill.
Wednesday’s vote prevented any filibuster and limits further debate to 30 hours of Senate time. The Senate majority leader had hoped for unanimous consent to proceed to debate at the beginning of the next day, but was forced to hold a roll call vote at 10 p.m. Thursday to open the debate. That vote went 53-23 and allowed debate to proceed. Following the vote, Schumer announced that the final vote will come immediately upon the Senate’s return from Thanksgiving break on Monday, November 28.
The final vote only requires a simple majority to pass the Senate—which shouldn’t be a problem given the support it’s already received. After that, the amended version must be approved by the House of Representatives before it can be sent to President Joe Biden to sign into law. Given that the House passed the original version by a wide margin with bipartisan support in July, the amended version is expected to pass.
Twelve Republican Senators—fewer than one-quarter of the caucus—joined all Democrats to invoke cloture on Wednesday. They are: Roy Blunt (Missouri), Richard Burr (North Carolina), Shelley Moore Capito (West Virginia), Susan Collins (Maine), Joni Ernst (Iowa), Cynthia Lummis (Wyoming), Lisa Murkowski (Alaska), Rob Portman (Ohio), Dan Sullivan (Alaska), Mitt Romney (Utah), and Thom Tillis (North Carolina).
After Wednesday’s vote, Democratic Senator Tammy Baldwin (Wisconsin), one of the lead negotiators on the bipartisan amendments to the RFMA tweeted that the vote was a victory for equality.
“Today, the Senate made it clear that we stand with the American people by voting to move forward with the #RespectForMarriageAct. This is a HUGE win and we are one step closer to ensuring same-sex and interracial couples have the same rights & freedoms as everyone else!” she said.
The RFMA vote is the culmination of a decade-long campaign to repeal the 1996 Defense of Marriage Act (DOMA), which barred the federal government from recognizing same-sex marriages and allowed state governments to ignore same-sex marriages performed in other states. Much of the law was declared unconstitutional and unenforceable in two Supreme Court cases, the 2013 United States v. Windsor decision and the 2015 Obergefell v. Hodges decision.
Under the new law, the federal government will recognize any marriage as long as it is legal in the state where it was performed, and state governments are required to do the same. The law gives the federal department of justice as well as individuals the power to sue state officials who refuse to recognize such marriages.
Evan Wolfson, who founded and ran the lobby organization Freedom to Marry (which disbanded in 2016), says the law gives legal certainty to same-sex couples.
“It mandates that any couple who is legally married … will have their marriage treated with respect and equality throughout the U.S. no matter where they live,” he says. “It will also be a powerful signal from congress to the Supreme Court not to roll back the freedom to marry. Not only does a supermajority of the American people support the freedom to marry, but also a bipartisan Congress is sending that message. Having gotten it wrong in 1996, Congress has moved and the Supreme Court should not try to pull things back.”
One place where the bill would see immediate effect is American Samoa, a small U.S. territory in the South Pacific. For complicated reasons dealing with the legacy of colonialism and racism, the U.S. Bill of Rights does not apply to that territory, and its government has refused to license or recognize same-sex marriage. This bill would require the territorial government to recognize legal same-sex marriages from other jurisdictions for the first time.
The law would also protect interracial marriages in the event that the Supreme Court overturns its 1967 decision in Loving v. Virginia, which declared laws banning interracial marriage unconstitutional. No states currently have laws on the books banning interracial marriage—Alabama was the last state to repeal its interracial marriage law in 2000.
But the RFMA doesn’t actually require states to perform same-sex marriages.
“It’s not clear constitutionally whether congress can require states to perform certain marriages, but it is clear that congress can require them to treat all marriages with respect,” Wolfson says.
How did we get here?
Calls for recognition of same-sex couples had begun to gain steam in the late 1980s as the AIDS crisis threw many queer couples into legal turmoil, particularly regarding housing, inheritance and rights around hospital visitations and medical decisions.
In 1993, the Hawaii Supreme Court has issued a ruling that was sympathetic to same-sex couples seeking equal marriage rights, which sparked a panic in other states, whose legislators feared that they would be forced to recognize Hawaiian gay marriages. That case was eventually dismissed in 1998, when Hawaii voters approved a state constitutional amendment allowing the state to restrict marriage to same-sex couples.
But in 1996, federal legislators responded with the Defense of Marriage Act, which sailed through congress with bipartisan support and veto-proof majorities. It was signed by President Clinton on September 21, 1996.
Over the next decade, dozens of U.S. states passed laws and state constitutional amendments banning same-sex marriage. Some went further and banned any form of recognition of same-sex couples, including civil unions or domestic partnerships. All of these were ruled invalid by the 2015 Supreme Court decision Obergefell v. Hodges, which ruled that the right to same-sex marriage was protected by the U.S. Constitution’s due process and equal protection clauses.
Then, this summer, the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, which ruled that access to abortion is not protected by the due process clause. Justice Thomas wrote in his opinion that the court should review its many other due process decisions, including Obergefell.
Although some Republicans were quick to point out that Thomas’s extreme position was not supported by any other justice, other conservative voices were quick to insist that Obergefell was wrongly decided. That led to the backlash that got the RFMA pushed up the legislative agenda. In July, the House of Representatives passed the bill with bipartisan support on a 267-157 vote.
But in the Senate, where the bill was co-sponsored by openly lesbian Democrat Tammy Baldwin, obstacles remained. Due to the upper chamber’s quirky rules, most bills require 60 votes to reach a floor vote, or they’ll be subject to a filibuster. While all 50 Democrats supported the bill, only three Republicans joined them publicly during the summer. The bill’s sponsors agreed to punt the bill to the lame-duck session held after the midterm elections on November 8.
Are same-sex marriages safe now?
The short answer is: “Yes, for now.”
No real challenge to Obergefell has been filed, nor has any public official defied it to the extent that a same-sex couple might be required to sue a state, and thus bring Obergefell back to the courts.
But, in the event that happens, and courts do reverse Obergefell, state-level statutes and constitutions that bar same-sex marriage could be automatically put back into effect. In that case, for example, same-sex couples might not be able to get married in Alabama or Texas, but those states would have to recognize a same-sex marriage performed in New York or Washington.
And despite some Republicans’ protests that no one is seriously challenging the right to same-sex marriage, they are also blocking efforts to repeal defunct bans on same-sex marriage at the state level.
In all, 34 U.S. states and two territories have either a statute, a constitution or both that ban same-sex marriage. State legislatures can easily repeal statutes if they so choose, but state constitutional amendments typically require a referendum as well as passage by the state legislature.
In 2020, Nevada passed a state constitutional amendment repealing its ban on same-sex marriage, and California legislators are planning to put an equal marriage amendment to voters in 2024. An attempt to repeal Virginia’s state constitutional ban on same-sex marriage was quashed when Republicans took control of the state legislature last year and blocked the required legislative approval to hold a referendum.
Michigan could be the next state to repeal its state law and constitutional clause banning same-sex marriage, after Democrats took control of its legislature during the midterm elections.
But not all marriage equality activists think it’s worth the effort to repeal these defunct laws.
Wolfson says the effort to amend state constitutions may divert activist resources from more important battles.
“In cases where it’s simply a matter of statutory fixes, sure. In some cases you’re talking about a state constitutional effort, and that’s a huge effort, that may be better applied to regular democratic engagement, electing the right legislators,” he says. “That could go into the larger project that we all need to be a part of. I would prefer to be a part of that.”
Wolfson wants federal legislators to protect civil rights by appointing more liberal justices to the Supreme Court to make up for the justices appointed by Republican presidents whose views are out of line with the American mainstream.
“The most important thing we can do to protect the freedom to marry is to protect our democracy. That means turning out the vote and taking the steps the Constitution allows us to take to cure the court packing [by Republicans],” he says. “The Constitution allows Congress to pass a law expanding the court.”
What about other LGBTQ2S+ rights?
In his decision in the Dobbs case, Justice Thomas also argued that the court should revisit its 2003 decision in Lawrence v. Texas, which found that laws banning sodomy are unconstitutional. Again, although no other justices joined his decision, it sent a clear signal that some conservatives are hoping will roll back the right to consensual gay sex in the United States.
Presently, 14 U.S. states still have sodomy laws on their statute books. In the wake of the Dobbs decision, lawmakers in Maryland and Massachusetts pushed bills to finally repeal their defunct sodomy bans, but both failed to pass this year. Maryland Democrats have vowed to pass a repeal bill next year.
With Democrats having won control of the Michigan and Minnesota state legislatures during the November midterms, those states may finally repeal their sodomy laws next year as well.
But that would still leave sodomy laws on the books in Florida, Kansas, Kentucky, Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina and Texas.
On this issue, Republicans haven’t been uniformly opposed. Republican-controlled legislatures repealed defunct sodomy laws in Virginia, Utah, Alabama and Idaho in the last decade. Even Texas senator Ted Cruz, who is adamantly opposed to same-sex marriage, has argued that his home state should repeal its sodomy law.
In order to continue to protect LGBTQ2S+ rights in the U.S. going forward, some degree of bipartisan cooperation is going to be necessary. Republicans still control the majority of state legislatures, just won control of the U.S. House of Representatives and have enough votes in the U.S. Senate to filibuster legislation they don’t like. But as support for queer people continues to grow among the U.S. population, Republicans may be finding that their traditional opposition to our rights is becoming electorally untenable.