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Senate takes step toward codifying same-sex marriage

U.S. Capitol (BP file photo)

WASHINGTON (BP)—The U.S. Senate took the first and an apparently decisive step Wednesday (Nov. 16) toward codifying same-sex marriage into law with the aid of more than one-fifth of Republicans in the chamber.

Senators voted 62-37 to invoke cloture, as the procedural move is known, and thereby bring up for a final vote the Respect for Marriage Act (RMA). All 50 Democrats and 12 Republicans voted in favor of the motion, which needed 60 votes to succeed. The bill would repeal the 1996 Defense of Marriage Act (DOMA) and require federal and state recognition of same-sex marriages considered legal in the jurisdiction where they took place.

The Senate is expected to vote soon to approve passage of the RMA, which will require only a majority and will serve as a watershed, congressional redefinition of the institution of marriage if enacted.

The House of Representatives approved the RMA in July, when 47 GOP members joined all Democrats in a 267-157 vote. The Senate legislation, however, includes amendments to the House-approved bill that primarily attempt to address religious liberty concerns, though critics say they fall short. If senators pass the measure, another vote by the lower chamber would be required before it can go to the White House. President Biden is expected to sign it into law.

If enacted, the RMA would largely serve as the legislative version of the U.S. Supreme Court’s 2015 Obergefell v. Hodges decision that legalized gay marriage.

Despite amendments regarding religious freedom, the Southern Baptist Ethics & Religious Liberty Commission (ERLC) – as well as other defenders of the biblical view of marriage and conscience rights – has remained opposed to the RMA.

“It is disappointing to see a majority of our U.S. Senators vote in support of a bill that goes directly against God’s design for our most foundational institution — the family,” ERLC Policy Manager Hannah Daniel told Baptist Press. “The ERLC will continue to oppose the Respect for Marriage Act as it moves ahead and, if signed into law, will work to address the serious religious liberty ramifications from it.

“In a time where Congress has no shortage of important concerns to tackle, our representatives should prioritize solutions for the pressing issues facing the American people rather than divisive bills that harm people of faith,” she said in written comments.

The amended bill still “does not provide adequate protections for religious liberty,” Daniel said in a post on the ERLC’s website Wednesday. “Through reiterating the protections that already exist in the law and using unhelpfully vague language, the amendment appears to offer people and institutions of faith more additional protection than it actually does.”

The Religious Freedom Institute said the Senate amendments “purport to protect religious freedom, but in fact do not.”

While same-sex marriage is the focus of consideration regarding the RMA, the bill’s language prohibits denial of the recognition of marriage between two people on the basis of their “sex, race, ethnicity, or national origin.” The U.S. Supreme Court invalidated state bans on interracial marriage in its 1967 Loving v. Virginia decision.

The Religious Freedom Institute protested what it described as the RMA’s juxtaposition of same-sex marriage and race. “In short, the RMA is discriminatory to its core,” the institute said in a three-page analysis of the proposal. Even with the amendments, the RMA’s premise remains – “namely that opposition to same-sex ‘marriage’ is akin to racism. That claim is not only false but profoundly disingenuous. There is no real or perceived threat to marriage based on race in any state in America.”

The RMA “would communicate to the nation that the millennia-old view of marriage held by Christian, Jewish, Muslim, and other religious citizens is despicable and that those who continue to embrace it are, like racists, despicable people,” according to the RFI.

The amended version before the Senate says nothing in the bill “shall be construed to diminish or abrogate a religious liberty or conscience protection” available to a person or organization under the U.S. Constitution or federal law. It also says nonprofit organizations, including churches, will not be required to provide services for a wedding or its celebration.

In addition, the Senate bill clarifies the RMA does not “require or authorize” federal recognition of polygamous marriages.

After House passage of the RMA, ERLC President Brent Leatherwood urged all senators in a late-July letter to oppose the legislation. “Marriage is an institution created by God, not by man,” he wrote. “No individual or government has the authority or ability to supersede its design.”

On the eve of the vote, The Church of Jesus Christ of Latter-day Saints (LDS) issued a statement in support of the RMA. It expressed gratitude for the attempt to safeguard religious liberty in the bill “while respecting the law and preserving the rights of our LGBTQ brothers and sisters. We believe this approach is the way forward.”

While the Utah-based LDS, or Mormons, had opposed legal recognition of same-sex marriage in the past, they have supported gay rights legislation in recent years that proposed to protect religious freedom.

The Republicans who voted to invoke cloture were Sens. Roy Blunt of Missouri, Richard Burr of North Carolina, Shelley Moore Capito of West Virginia, Susan Collins of Maine, Joni Ernst of Iowa, Cynthia Lummis of Wyoming, Lisa Murkowski of Alaska, Rob Portman of Ohio, Mitt Romney of Utah, Dan Sullivan of Alaska, Thom Tillis of North Carolina and Todd Young of Indiana.

When announcing the scheduled cloture vote, Senate Majority Leader Charles Schumer, D-N.Y., said passage of the RMA “would be one of the more significant accomplishments” of the congressional session. “It will do so much good for so many people who want nothing more than to live their lives without the fear of discrimination,” he said on the Senate floor Tuesday (Nov. 15).

Democrats pushed for passage of the Respect for Marriage Act after the Supreme Court’s June reversal of Roe v. Wade, the 1973 opinion that legalized abortion nationwide. Supporters of same-sex marriage expressed concerns a future high court might also overturn the Obergefell ruling and called for a legislative remedy to try to prevent such an action.

They cited a concurring opinion by Associate Justice Clarence Thomas in which he said the high court “should reconsider” all precedents similar to Roe. In the majority opinion, however, Associate Justice Samuel Alito denied the ruling to overturn Roe would call into question the justices’ rulings in Obergefell and other cases.

By enacting DOMA in 1996, the federal government defined marriage as only between a man and a woman and protected the right of a state not to recognize a same-sex marriage that occurred in another jurisdiction. President Clinton signed DOMA into law after it gained passage unanimously in the House and by 97-3 in the Senate.