Twenty-six years ago, the U.S. Senate voted overwhelmingly for the Defense of Marriage Act, a law broadly supported by the American public that defined marriage as the union between a man and a woman.
But the people’s voice, as it turned out, was always moving. A bipartisan group of 61 senators spoke loudly on Tuesday, signaling a near-total upending of once dominant political dynamics when they voted to effectively nullify the 1996 law. The Respect for Marriage Act, once repassed by the House and signed by President Biden, will help protect recognition of same-sex marriages, enforced by the U.S. Supreme Court’s 2015 Obergefell v. Hodges ruling, against future legal challenges.
Same-sex marriage bill
While cultural divides continue to animate politics, marriage long ago faded from being a defining social debate. Donald Trump issued conflicting statements on his support for same-sex marriage during his presidential campaigns. The Republican Party now openly celebrates Pride Month and courts LGBTQ voters. Socially conservative activists have moved on to other fights, like the debates over transgender student-athletes. Religious institutions such as the Church of Jesus Christ of Latter-day Saints supported the religious liberty provisions in the bill that passed the Senate on Tuesday.
But the success of same-sex marriage advocates has not ended the fight for greater legal protections for LGBTQ people, who have been subjected to a surge of threats and violence in recent years. Debates about how schools should teach gender and sexual orientation became a hot-button issue in the midterm elections, as has a debate over whether transgender women should be able to compete in women’s sports. Democratic efforts to pass the Equality Act, which would provide nondiscrimination protections to LGBTQ people, have yet to garner significant Republican support.
Barbara Simon, a senior director at GLAAD, said she is particularly worried about a “steady drumbeat of disinformation” targeting LGBTQ communities and individuals, such as the false accusations that LGBTQ people and their allies are “grooming” children.
Yet Tuesday was largely a celebratory day for advocates of protecting same-sex marriage. Senate Majority Leader Charles E. Schumer (D-N.Y.), who as a congressman supported the 1996 law that barred same-sex marriage, said his first call after the bill passed Tuesday would be to his daughter, who is expecting a child with her same-sex spouse in the new year.
“Today, a new day has come for them,” Schumer said. He added that his grandchild would “grow up in a more accepting, inclusive and loving world.”
Such unequivocal positions from leading politicians, including Democrats, were long seen as politically untenable. When he signed DOMA, President Bill Clinton expressed conflicting feelings. “I have strenuously opposed discrimination of any kind,” he wrote, only to allow his reelection campaign to place an ad on Christian radio boasting of his opposition to gay and lesbian nuptials.
The Democratic Party’s 2008 presidential nominee, Barack Obama, also opposed same sex-marriage, a plank his top political adviser David Axelrod later described as a “compromised position” made not from conviction but political expediency.
Gallup polling shows support for the same-sex marriage has risen from 27 percent of Americans in 1996 to 71 percent this year. That places same-sex marriage in the same category as other nearly settled societal transformations, like the public support for interracial marriage which rose from 4 percent in 1958 to 94 percent today, and marijuana legalization, which rose from 12 percent in 1969 to 68 percent today.
“All the alarmism that came from opponents of marriage equality on the right — ‘This is going to be the end of modern families. This is going to be the end of Western civilization’ — none of that has been borne out,” said Sasha Issenberg, the author of “The Engagement: America’s Quarter Century Struggle Over Same-Sex Marriage.” “The Democratic Party is unified on this, and it is Republican politicians who are torn between satisfying a significant anti-gay part of their coalition and the fact that public opinion has basically inverted.”
Twelve Republican senators joined a united Democratic caucus in supporting the measure that went to a vote on Tuesday, which also includes protections for interracial marriage and language clarifying that it does not protect polygamous unions and will not change existing religious liberty protections.
Tuesday’s Senate floor proceedings came after a U.S. House vote in July when 47 Republicans joined Democrats in supporting a similar proposal. Biden, who supported the 1996 law before announcing his support for same-sex marriage in 2011, has promised to sign the bill.
“The distance we’ve traveled as a country, I think, is really remarkable,” said Naomi Goldberg, a deputy director at Movement Advancement Project, a nonpartisan think tank that has been tracking anti-LGBTQ policies since 2006. The bill’s passage is “a reminder of the hard work we’ve done and what’s possible,” Goldberg added.
The vote Tuesday for the Respect for Marriage Act was prompted by Justice Clarence Thomas’s concurring opinion in the Supreme Court’s June decision to overturn the constitutional right to abortion established decades ago in Roe v. Wade. Thomas has argued that court precedents that rely on a similar constitutional analysis should also be reconsidered, including the court’s 2015 decision legalizing same-sex marriage and previous rulings that overturned laws against sodomy and contraceptive access.
The bill passed Tuesday does not immediately change the legal status of same-sex marriages, and it does not require states to perform same-sex marriages. But if Thomas and his legal allies have their way when it comes to reexamining prior court decisions, the new law would maintain federal recognition of same-sex marriage and require states to recognize those marriages in other states.
After the House vote this summer, a bipartisan group of five senators, including the first openly gay person elected to the Senate, Democrat Tammy Baldwin of Wisconsin, and Kyrsten Sinema (D-Ariz.), quickly began working behind the scenes to drum up at least 10 Republicans to beat the chamber’s 60-vote filibuster threshold. They saw an opportunity to reassure Americans in same-sex marriages that the Supreme Court could not invalidate their marriages if they also decided to overturn the Obergefell precedent.
Several Republicans said they wanted to support the bill but were worried it didn’t do enough to reassure religious groups they would not be punished for not supporting same-sex marriage. The group tweaked the bill to address those concerns, and then pushed the vote to after the midterm elections, when some Republicans said they would feel more comfortable taking a potentially controversial vote.
In mid-November, 12 Republicans joined all 50 Democrats to advance the bill, including some surprising allies such as Sen. Cynthia M. Lummis (R-Wyo.), who had a zero rating from the gay rights group the Human Rights Campaign during her time in the House, and Sen. Dan Sullivan (R-Alaska), who ran on banning same-sex marriage less than a decade ago.
“These are turbulent times for our nation,” Lummis said on the Senate floor, explaining her vote was aimed at making the country less divided and more tolerant. “For the sake of our nation today and its survival, we do well by taking this step.”
Baldwin said the legislation would ease the “anxieties and fears” of same-sex and interracial couples in the wake of the Dobbs decision regarding abortion.
“We are not pushing this legislation to make history,” Baldwin said Tuesday. “We are doing this to make a difference for millions upon millions of Americans.”
Republicans who voted against the measure argued that it was unnecessary, given they do not believe the Supreme Court would reverse itself or said that it was not protective enough of religious freedom.
Sen. James Lankford (R-Okla.) listed numerous groups who are against the bill, including the U.S. Conference of Catholic Bishops, and said the bill puts “religious liberty at risk” for many Americans. Other Republican senators, including Sen. Mike Lee of Utah, echoed similar concerns.
The new federal law leaves untouched the rules in 35 states, where same-sex marriages are banned in their constitution, state law or both, according to a recent Pew report. Those laws could go back into effect if the Supreme Court overturns its 2015 ruling, raising anxieties for people like Josh Roth, a 33-year-old fundraiser living in Orlando. Roth said if marriage equality becomes federal law, it will only temporarily make him feel safer.
Roth said he is concerned that his home state may challenge federal protections. The Republican legislature quietly shelved a proposal earlier this year to repeal a law on the books barring same-sex marriages in the state. The continued political uncertainty has shaped his own decision to marry his longtime partner. They got engaged last August, but after the Supreme Court overturned Roe v. Wade in June, Roth and his partner discussed whether they needed to move up their wedding date.
“If there’s any state in the union that’s going to try to challenge Obergefell, it’s going to Florida,” Roth said.
As debates continue over whether to limit discussions of LGBTQ issues in schools and how to approach transgender issues, some LGBTQ advocates say there are lessons to be learned from the success in same-sex marriage.
“We spent two decades, now three decades, educating around marriage equality and what it means to be in a same-sex relationship,” said David Stacy, the head of government affairs at the Human Rights Campaign, an LGBTQ advocacy group. “These are concepts that people are still getting familiar with.”
Marriage equality, said Simon, of the group GLAAD, is “a great success — but it’s not everything.”