Senate Advances Religious Freedom Amendment to Marriage Equality Bill

The U.S. Senate Monday advanced a religious freedom amendment to a marriage equality bill, the Respect for Marriage Act, moving the legislation a step closer to passage.

The Respect for Marriage Act would write marriage equality into federal law, protecting it from Supreme Court action. The amendment is meant to allay concerns that the act would interfere with religious liberty. The amendment confirms that no nonprofit religious organization would have to provide goods, services, or facilities for wedding ceremonies or receptions, and it clarifies that the federal government would not have to recognize polygamous marriages. A coalition of faith groups has endorsed the amendment.

The Senate voted 61-35 to end debate on the amendment, allowing it to move on to a further vote, The Hill reports. Twelve Republicans joined all 49 Democrats and independents who were present. Democratic Sen. Raphael Warnock of Georgia was absent because he is still campaigning, facing a runoff election against Republican challenger Herschel Walker December 6.

A final vote on the overall bill is expected Tuesday. But votes on three other, broader amendments are also set for Tuesday. Republican Sens. James Lankford of Oklahoma, Mike Lee of Utah, and Marco Rubio of Florida all say the current amendment, negotiated by a bipartisan group of senators, is too weak to protect the religious liberty of those who oppose marriage equality.

They are largely concerned about a section of the Respect for Marriage Act that would bar anyone acting under a state law from denying full faith and credit to a marriage based on the sex, race, ethnicity, or national origin of the spouses. The U.S. attorney general would have the power to enforce this, and anyone harmed by such a denial would have a right to sue.

"My simple, common-sense amendment would prohibit the federal government from retaliating against any person or group for adhering to sincerely held religious beliefs and moral convictions about marriage," Lee wrote in a commentary published by Fox News and posted on his Senate website.

Rubio wants to strike the right to sue from the the act. In a release on his website, he contended that if it is not stricken, "an orphanage run by nuns who do not want to place children with same-sex couples could be sued in federal court by any individual. The same is true for other faith-based entities acting 'under color of state law,' another intentionally vague and ambiguous term."

The push for the Respect for Marriage Act came after Justice Clarence Thomas wrote that the Obergefell v. Hodges decision, in which the Supreme Court ruled for marriage equality in 2015, should be overturned. He did so in his concurring opinion in Dobbs v. Jackson Women's Health Organization, the June ruling in which the court overturned Roe v. Wade, revoking the nationwide guarantee of abortion rights. There is no case currently making its way through the courts challenging Obergefell, but Thomas and other conservatives have made clear they would welcome one.

The Respect for Marriage Act would assure that marriage equality would remain the law of the land no matter what the high court does. It would also repeal the Defense of Marriage Act, which was struck down in Obergefell and Windsor v. U.S. but remains on the books, and would guarantee the right to interracial marriage as enshrined in the high court's Loving v. Virginia ruling in 1967.

The House of Representatives has already passed the Respect for Marriage Act, but if the Senate adds any amendments, the bill would have to go back to the House for the new version to be approved.

On the Senate floor Monday, Majority Leader Chuck Schumer urged his colleagues to support the bill. "I hope we can get it done with all due speed, because millions of Americans deserve equal justice under the law and the peace of mind knowing their right to marry the person they love is protected," Schumer said, according to The Washington Post.