US Senate moves to protect same-sex marriage from Supreme Court

When the conservative-majority US Supreme Court struck down Roe v. Wade in June of this year, the comments made by one particular judge set off alarm bells.

Justice Clarence Thomas – an arch-right jurist, who is married to an election denier – not only supported the suppression of abortion as a constitutional right, but also mused about reviewing other legal precedents, including the one that the Supreme Court used to legalize same-sex marriage throughout the country in 2015.

As a result of this threat, the Democratic Party proposed a law in Congress that would shield same-sex marriage, as well as interracial marriage, from judicial overreach. On Wednesday, November 16, this initiative cleared a key hurdle in the Senate. It may become law before the end of the year, and it even has the support of the traditionally-conservative Mormon Church.

Surprising bipartisan support

When the Democrats introduced two marriage-related bills over the summer – one in the House of Representatives and the other in the Senate – they had little hope that either law would pass. Rather, they presented the legislation hoping that the Republican Party would openly oppose it, so as to boost public support for the Democratic Party in the midterm elections. About 70% of Americans support same-sex marriage, with interracial marriage at an approval rate of around 94%.

In the House, surprisingly, 47 Republicans ended up joining all Democrats in passing the Respect for Marriage Act. But the real problem was expected to be in the Senate, where at least 60 out of 100 senators would need to support the bill to overcome the filibuster. Anti-gay Republican senators managed to delay the vote until after the November 8 midterms, hoping that they would have even more far-right support to torpedo the law. In the end, however, the Democrats kept control of the upper chamber, after all of former president Donald Trump’s hand-picked candidates lost in key races.

On Wednesday, in a stunning turn of events, 62 senators – 12 of them Republicans – voted in favor of the Respect for Marriage Act.

Same-sex marriage has been legal throughout the United States since the Supreme Court – then with a progressive majority – handed down a decision titled Obergefell v. Hodges in 2015, declaring that all 50 states have the obligation to grant marriage licenses to couples of the same sex under the Fourteenth Amendment of the United States Constitution. Before this decision, same-sex marriage was already legal in 37 states and the District of Columbia, due to a 2013 ruling.

Previously, the Supreme Court had declared the Law for the Defense of Marriage Act – approved in 1996 – to be unconstitutional. This was a discriminatory proposal that would have denied any federal rights and benefits to members of same-sex civil unions.

Now, with a 6-3 right-wing majority on the court, the judiciary no longer appears willing to ensure the rights of gay couples. To counter this, the Respect for Marriage Act expressly recognizes the federal rights of same-sex marriages, so that in the event that the Supreme Court attempts to reverse existing legal precedents, there is at least some level of protection for LGBTQ Americans. However, there is still the possibility that several conservative governors – should they obtain the backing of the highest court in the land – could ban same-sex marriage at the state level.

The law still requires formal approval by the Senate in a few weeks so that it may proceed to the House for a vote. The plan is to approve the legislation before a new Congress takes office at the beginning of next year, in which Democrats will control the Senate, but not the House.

The Mormon factor

The high social acceptance of same-sex marriage has pushed even historically conservative institutions – such as the Church of Jesus Christ of Latter-day Saints – to support it.

Senator Mitt Romney – a Mormon and the Republican nominee for president in 2012 – is one of the legislators who have voted in favor of the Respect for Marriage Act. He represents the state of Utah, where Mormonism is the principal religion.

The Mormon Church reaffirms that Mormon marriage should be between a man and a woman, but it separates religious doctrine from civil regulation.

“This legislation provides certainty to many LGBTQ Americans, and it signals that Congress – and I – esteem and love all of our fellow Americans equally,” Romney read in a statement.

The proposed law includes guarantees for religious freedom, which would allow institutions such as the Mormon Church to choose not to perform same-sex marriage, without risk of losing federal tax exemptions.

President Joe Biden – who publicly supported gay marriage even before former president Obama – celebrated the Senate vote: “Love is love. Americans should have the right to marry the person they love.”