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Schumer sets up Senate vote on same-sex marriage bill

Supporters of same-sex marriage stand beneath a large rainbow flag outside the Supreme Court in 2015, just months before the court decided Obergefell v. Hodges. (Astrid Riecken for The Washington Post)

Senate Majority Leader Charles E. Schumer (D-N.Y.) on Monday filed the Respect for Marriage Act, setting up a first procedural vote for Wednesday on the bill that would enshrine marriage equality into federal law.

Democrats have warned that same-sex marriage and other rights could be at risk since June, when the Supreme Court overturned Roe v. Wade, which for nearly 50 years had guaranteed the right to an abortion in the United States.

“I want to be clear this bill is not a theoretical exercise," Schumer said on the Senate floor. "It’s as real as it gets.”

In July, the House passed the Respect for Marriage Act, but the Senate delayed its vote on the bill until after the midterm elections. The decision to postpone the vote was negotiated on a bipartisan basis and was made to ensure that there were enough votes to pass the measure.

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The Respect for Marriage Act would require that someone be considered married in any state as long as the marriage was valid in the state where it was performed. The bill would also repeal the 1996 Defense of Marriage Act, which defined marriage as the union of one man and one woman and allowed states to not recognize same-sex marriages performed in other states. That law has remained on the books despite being declared unconstitutional by the Obergefell v. Hodges ruling.

“The Respect for Marriage Act is a needed step to provide millions of loving couples in same-sex and interracial marriages the certainty that they will continue to enjoy the freedoms, rights, and responsibilities afforded to all other marriages,” Sens. Tammy Baldwin (D-Wis.), Susan Collins (R-Maine), Rob Portman (R-Ohio), Kyrsten Sinema (D-Ariz.) and Thom Tillis (R-N.C.) said in a joint statement Monday.

“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,” they continued. “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.”

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Those senators had been part of a bipartisan group that was trying to find 10 Republican votes necessary for the bill to pass in September. Some Republicans had been skittish about taking a position on the legislation less than two months from the midterm elections, and ultimately the group negotiated a delay on the vote.

“I think we’re in very good shape and this bill is going to pass,” Collins told reporters in September after it was announced that the bill would wait until after the election.

Passage in the Senate would require 60 votes to avoid a filibuster.

In his June concurrence with the decision to overturn Roe v. Wade, Supreme Court Justice Clarence Thomas wrote that the high court should also examine previous rulings that legalized the right for married couples to buy and use contraception without government restriction (Griswold v. Connecticut), same-sex relationships (Lawrence v. Texas) and marriage equality (Obergefell v. Hodges).

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. “Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.”

“After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated,” he added.

Thomas’s opinion set off alarm bills among proponents of marriage equality, particularly with the prospect of a Republican-controlled Congress after the midterms. However, Republicans drastically underperformed expectations last Tuesday, and Democrats will retain their majority in the Senate. A Dec. 6 runoff in Georgia — between Sen. Raphael G. Warnock (D) and Republican Herschel Walker — will determine if Democrats gain a 51st Senate seat.

Control of the House remained undecided Monday, with several races still to be called. Neither party has yet reached the 218 seats needed to gain a majority in that chamber.

Leigh Ann Caldwell contributed to this report.