What’s in the Respect for Marriage Act, and is same-sex marriage safe?

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The Senate votes to advance the Respect for Marriage Act. What’s in it, and how would it protect same-sex marriage?

It does not create the federal right to same-sex marriage that Obergefell does.

The Senate votes to advance the Respect for Marriage Act. What’s in it, and how would it protect same-sex marriage?
THE NEWS

The Senate voted 62-37 to advance the Respect for Marriage Act — a bill meant to protect the right to same-sex marriage in America. Based on the number in favor of the bill in the procedural vote, the Senate is expected to easily pass the measure, then send it back to the House for a second vote before it lands on President Joe Biden’s desk.

The bill is one of 2022′s most surprising legislative developments. After the Supreme Court’s Dobbs decision, activists argued that Congress needed to pass a bill enshrining same-sex marriage in case the court overturns Obergefell v. Hodges, the 2015 Supreme Court case that solidified same-sex marriage as a liberty protected under the 14th Amendment. But few expected the Respect for Marriage Act would actually make it through — until the House of Representatives cleared the bill in July with bipartisan support.

Some Senate Republicans expressed concern that the Respect for Marriage Act wouldn’t do enough to protect religious liberty (though experts have argued that is not the case). These concerns posed hurdles to supporters of the bill in the early fall when lawmakers were trying to gather enough votes to get it through the Senate. To quell these worries, a group of bipartisan lawmakers met to carve out more explicit religious protections with hopes of satisfying conservatives on the issue. It worked.

The result is a compromise that “fully respects and protects Americans’ religious liberties and diverse beliefs,” the senators said in a joint statement this week.

THE CONTEXT

The Respect for Marriage Act would not create the federal right to same-sex marriage that Obergefell does. It is a narrower bill stating that states have to recognize same-sex marriages that are performed in other states. For example, if the bill becomes law and Obergefell is overturned in the future, Texas could opt to not allow same-sex marriages to be performed in the state but it would have to recognize same-sex marriages performed elsewhere.

The same-sex marriage debate in Washington has been shaped in part by the views of a key block of Republican voters, Evangelical protestants, who overwhelmingly oppose same-sex marriage even as much of the country has warmed to it in recent decades. The senators who negotiated the current bill say that the major hurdle to it having some Republican support, concerns about religious liberties, has now been resolved.

RELIGION LENS

Most Americans support same-sex marriage, but there’s a key GOP voting block that doesn’t

More than 60 percent of American adults favor same-sex marriage overall. That includes 44 percent of Republicans, a share that has been rising steadily in recent decades. But some of the most reliable and vocal GOP voters — white evangelical Christians — are also among the biggest opponents of same-sex marriage, a key fact that has kept the Republican Party from embracing the issue.

The gap between white Evangelical Protestants and many other religious groups when it comes to same-sex marriage is striking. As of 2021, overwhelming shares of Jewish Americans, mainline Protestants and Catholics supported same-sex marriage, as did 55 percent of Black Protestants and 55 percent of Muslims. But only 35 percent of white Evangelical Protestants feel similarly, according to polling conducted by the Public Religion Research Institute.

This is important because white Evangelical Protestants make up a key voting block for Republicans and have historically been very active in politics. An estimated 29 percent of Republicans identify as white Evangelical Protestants, according to PRRI surveys, more than any other religious group. Led by religious leaders like Jerry Falwell and Ralph Reed, these voters helped secure Donald Trump’s 2016 nomination to be president.

POLITICS LENS

Democrats were surprised by Republican support for the bill

The Respect for Marriage Act has been on an unusual journey on Capitol Hill. House Democrats initially put it up for a vote in the wake of the Supreme Court’s decision to overturn Roe v. Wade — expecting, in part, to put Republicans on the record as opposing a right to same-sex marriage.

But when the House voted on the bill, 47 Republicans joined Democrats in supporting it. The surprisingly strong outcome led senators to take up the issue in September, but they were soon met by headwinds from Republicans concerned about protecting religious liberty. Three Republican senators — Susan Collins of Maine, Rob Portman of Ohio and Thom Tillis of North Carolina — began negotiating with Democrats on a bill that, they hoped, could gather the 10 Republican votes needed to pass the bill.

At the time, legal experts told Grid that the bill — which would repeal the Defense of Marriage Act and mandate that states recognize (but not necessarily perform) same-sex marriages — would not infringe on religious liberties. That’s because it would regulate states, and not the private sector, leaving churches or wedding vendors with the ability to refuse service to same-sex couples if it infringed on their religious beliefs.

But seeing the opposition form among Republicans, Senate Democrats put the bill aside until after the election and gave the working group time to negotiate a compromise. The new iteration of the Respect for Marriage Act contains explicit language protecting businesses and nonprofits’ rights to religious liberty and states that churches do not have to perform or host same-sex weddings.

COURTS LENS

The Respect for Marriage Act is a backstop in case Obergefell is overturned

Right now, there aren’t any big challenges to Obergefell making their way through the U.S. court system. That could change at any time, however, and if a case challenging Obergefell got to the Supreme Court, there is reason to think that the court could strike down its groundbreaking 2015 decision.

With Roe v. Wade, the court asserted a right to abortion under the 14th Amendment to the Constitution, which states that no person can be denied “life, liberty, or property, without due process of law.” In court cases, the Supreme Court drew on the 14th Amendment to enshrine rights to privacy (including abortion), marital privacy (including the right to use contraception), sexual activity and same-sex marriage.

When the Supreme Court voted to overturn Roe v. Wade, it created the possibility that justices could in the future decide that other cases that used similar reasoning based on 14th Amendment rights were also faulty. Obergefell v. Hodges, the 2015 case that enshrined a national right to same-sex marriage, is one such case.

If Obergefell is overturned in the future and there is no federal effort to protect same-sex marriage, it could have major ramifications in states that still have same-sex marriage bans on the books. Thirty-five states ban same-sex marriage in their state constitution, by law, or both, according to the Pew Research Center.

This article has been updated. Thanks to Dave Tepps for editing this article.

  • Maggie Severns
    Maggie Severns

    Domestic Policy Reporter

    Maggie Severns is a policy reporter for Grid covering complex policy stories and major headlines.

  • Anna Deen
    Anna Deen

    Data Visualization Reporter

    Anna Deen is a data visualization reporter at Grid.

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