Senate set to pass same-sex marriage protections

The Senate is set to pass legislation Tuesday to enshrine same-sex marriage protections in federal law, bringing the bill a critical step closer to President Joe Biden’s desk.

The final vote comes after senators spent months negotiating language related to religious liberty, a bid to attract the necessary 10 GOP votes to break a filibuster. The legislation will also need to clear the House, a likely easy lift since a previous version that did not include language related to religious liberties was approved by nearly 50 House Republicans and all Democrats.

Before the final vote, however, the Senate still needs to hold votes on additional religious liberty amendments from Sens. Mike Lee (R-Utah), James Lankford (R-Okla.) and Marco Rubio (R-Fla.). Those amendments are expected to fail.

The legislation, led by Sens. Tammy Baldwin (D-Wis.), Susan Collins (R-Maine), Rob Portman (R-Ohio), Kyrsten Sinema (D-Ariz.) and Thom Tillis (R-N.C.), would ensure that the federal government recognizes a same-sex marriage, even if a couple moves to a state that doesn’t do so. In addition, the bill would repeal the 1996 Defense of Marriage Act, which defined marriage as between a man and a woman and passed the Senate by an overwhelming margin.

"This is something that many people in the LGBT community would not have expected just a decade ago, it really shows how much has changed in our country, this is a really historic milestone. It builds off of years and years of work of folks who have been talking for decades about ensuring that all couples have the same protections and also making sure that we're respecting all Americans' religious freedoms," Sinema said in an interview.

Before Thanksgiving, a total of 12 Senate Republicans supported advancing the legislation, after negotiators included language in the bill that stated it would not impact provisions from a 1993 religious freedom law. That law prohibits the government from placing a substantial burden on an individual's right to religious liberty. The bill also clarifies that non-profit religious groups would not see their tax treatment change and would not have to perform marriage services.

Although the Supreme Court guaranteed the right to same-sex marriage in 2015, proponents of the bill argue that the legislation will provide more certainty to same-sex and interracial couples. Democratic lawmakers were particularly keen to act after Supreme Court Justice Clarence Thomas’ concurring opinion in Dobbs questioned the Court's previous rulings, including on same-sex marriage.

Republican opponents to the legislation argue that it’s unnecessary given there’s no case challenging the 2015 ruling. And some argue that the religious liberty protections in the negotiated Senate bill don’t go far enough.

The likely final passage Tuesday occurs more than two months after the House passed their legislation to protect same-sex marriage. Senate Majority Leader Chuck Schumer had acquiesced to Senate GOP requests to delay the vote until after the midterm elections.

"I made the decision to take the risk and to wait," Schumer said in a floor speech. "Today we have vindication the wait was well worth it."