The Senate's Respect for Marriage Act has progressives arguing that efforts to safeguard same-sex unions remain unfinished after concessions were made to Republican demands for bolstered religious liberty protections.
The bill as it currently stands would officially repeal the Defense of Marriage Act and require state recognition of legal same-sex and interracial marriages but would not codify the Supreme Court's 2015 ruling in Obergefell v. Hodges that legalized same-sex unions nationwide or prevent the high court from eventually overturning the landmark decision.
"It would be great if the bill went further, but we don't have the votes for the bill to go further," Sen. Brian Schatz (D-Hawaii) told Changing America.
"I think this is an enormously important first step and I don't think there are any guarantees that the Supreme Court will not overturn the precedent they set recently with Obergefell, so this is important to protect the rights of same-sex couples across the country."
The Obergefell ruling barred states from enforcing statutes or constitutional amendments banning same-sex marriages. Should the Supreme Court overturn the ruling, as it did with Roe v. Wade and the right to abortion, the issue of same-sex marriages would be returned to the states.
The Respect for Marriage Act requires that states recognize same-sex marriages, but does not go as far as Obergefell in requiring that states perform those marriages.
Sen. Elizabeth Warren (D-Mass.), a leading progressive, called the legislation a positive "first step," but said "we've got more work to do" when it comes to preserving equal marriage rights.
However, the possibility of going further in the immediate future is remote given that House Republicans are set to retake the chamber in January.
"I want to see the day when we have 100 votes in favor of no discrimination, not just for who we love, but also in any activity," Warren said.
Naomi Goldberg, deputy director of the Movement Advancement Project, which tracks state and federal legislation affecting the nation's LGBTQ community, told Changing America that the legislation was also constrained by the Constitution.
The bill "does not require that every state allow same-sex couples to marry - the federal government can't do that constitutionally," she said. "What the Respect for Marriage Act would say is that you must recognize valid marriages regardless of sexual orientation, national origin and race."
"What's important," Goldberg added, "is that it doesn't touch the current statutory or constitutional patterns that exist in the majority of states. Those are still on the books."
Efforts to repeal state-level bans have been met with resistance from conservative legislators despite record-high support for marriage equality among American adults. In the Senate, Republicans were concerned that religious liberty protections may be eroded by federal legislation protecting marriage equality.
Sen. Mike Lee (R-Utah) forced the upper chamber to delay a procedural vote on the bill this month until 10 p.m. after he was unable to win the necessary support for his amendment to further strengthen the religious liberty provisions.
"They shouldn't be able to punish religious belief," Lee said on the Senate floor before the Nov. 16 vote. "That's all I want. A protection saying the federal government may not punish any individual or entity based on a religious or moral conviction-based belief about marriage. That is not too much to ask."
A bipartisan amendment introduced by senators this month seeks to address some of those concerns by reaffirming religious liberty and conscience protections guaranteed under the U.S. Constitution and existing federal law and clarifying that the Respect for Marriage Act will not authorize the recognition of polygamous marriages.
Senators including Tammy Baldwin (D-Wis.) and Rob Portman (R-Ohio) are hoping the added religious protections will win over Republicans still on the fence when the measure is brought up for a final vote this week, though progressive leaders and advocates argue the amendment dehumanizes same-sex couples and reduces their unions to "second class" marriages.
"We're settling for crumbs," Alejandra Caraballo, a prominent LGBTQ activist and instructor at Harvard Law's cyberlaw clinic, tweeted after the amended bill was released.
Still, senators have argued that they did the best they could given their narrow majority in the Senate.
"This bill maximizes the protections we were able to get with the votes we have," Sen. Chris Van Hollen (D-Md.) told Changing America. "We can certainly build on that to try to fully codify the constitutional law, but this was an important and necessary step."
"We wouldn't have gotten 62 votes with another proposal at this time," he said.
While at least 12 Senate Republicans and 47 House Republicans are likely to put the bill over the top, it is notable that more than 75 percent of GOP lawmakers did not vote for the proposal overall, including Senate Minority Leader Mitch McConnell (R-Ky.) and House Minority Leader Kevin McCarthy (R-Calif.).
The Senate will finalize its work on the Respect for Marriage Act this week with a pair of votes before the House is expected to OK it shortly after. President Biden has pledged to "promptly" sign the measure into law once it reaches his desk.
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