Bravery in the Senate

Terry H. Schwadron

Nov. 17, 2022

Fellow governmental skeptics: We just saw a good example that whom you put in office and some combination of cooperation and back-room dealings can have beneficial effects.

The vote yesterday in the Senate was only preliminary, but it happened in such a true bipartisan manner that we should have legislation to provide federal protections for same-sex marriage despite a waning congressional session.

Despite all the caterwauling among Republicans about a meeting of morality and same-sex unions, a dirty dozen Senate Republicans braved the waters to do the right thing to advance the Respect for Marriage Act.

With solid Democratic support, the 62–37 means even with the crazy Senate rules of requiring 60 votes for legislation that is widely praised in polls of Americans can pass in this ending session. Notably, the House had already passed this bill, meaning that the Senate was where it would rise or fall.

Given that this necessary qualifying vote came as word came that the House will have Republican majority in January, this was a “notable last gasp of bipartisanship by a lame duck Congress as lawmakers looked toward an era of political gridlock,” as The New York Times reported.

In September, only four Republicans had stepped forward to buck their party publicly. Democratic sponsors Tammy Baldwin of Wisconsin and Kyrsten Sinema of Arizona and Republican Susan Collins of Maine had argued that a vote should be delayed until after last week’s elections, when some hidden Republican votes might emerge.

Indeed, they did, including Mitt Romney of Utah, Roy Blunt of Missouri, Richard M. Burr of North Carolina, Shelley Moore Capito of West Virginia, Cynthia Lummis of Wyoming, Rob Portman of Ohio, Dan Sullivan of Alaska, Thom Tillis of North Carolina, Lisa Murkowski of Alaska, Joni Ernst of Iowa and Todd Young of Indiana. Of course, several of them are leaving the Senate this year, and Romney was covered with a decision by the Mormon Church to support the bill.

What It Does

The bill is not perfect, of course. It does not require that states set up for same-sex marriage, but it does extend federal protections for any that do so.

It addresses the variations among state laws and extends general protections over laws that allow for same-sex marriage. Challenges to these laws, however, have come on Freedom of Religion grounds from individuals or businesses who say they are not obligated to sell services to gay couples.

Of course, the biggest threat to same-sex marriage is not in the Congress or the White House, but at the Supreme Court, where Justice Clarence Thomas used his concurring decision in the Dobbs abortion case to all but invite a challenge to same-sex laws under the same constitutional provisions that the court threw out for perceived abortion rights.

But certainly, positioning a new bill extending federal protections basically as a civil rights measure strengthens the hand of the government in any potential court challenge. That’s the whole point of the bill — to codify the kind of rights that the court might otherwise seek to undermine, as it did with abortion.

And as with the abortion issue, the popularity of approval in the country for same-sex marriage is without doubt. The notion that a court could overturn families formed since the court’s adoption of same-sex marriage rights should be politically unthinkable — just as abortion rights advocates made clear in race after race across the country last week.

Senator Collins told The Times that even without an imminent threat, “there is still value in ensuring that our federal laws reflect that same-sex and interracial couples have the right to have their marriages recognized, regardless of where they live in this country.”

What’s the Context?

Now step back and consider anew what a Republican House majority intends to do with its newfound power.

It is an agenda devoid of work on inflation and crime, their two big campaign issues. Instead, it is a promise of revenge investigations against the Biden administration, the threat of impeachments, and endless grilling of Biden officials on immigration and cultural issues.

Given any number of public statements and promises, it seems well within reason to have expected an attempt to strengthen mandatory aspects of the Defense of Marriage Act, which is repealed by this new legislation.

Where we should be in agreement that civil rights are American rights, we’re seeing Republican governors and state legislative majorities adopting book bans and school rules aimed at squashing attempts to recognize gay lifestyles or transgender choices as individual rights that are downright ordinary.

“It gives families all over America the peace of mind to know that their marriages are going to be valid in other states,” Republican Senator Portman, who is retiring after this Congress and whose conservative views on same-sex marriage shifted after his son, Will, came out as gay in 2011, told The Hill.com.

What is remarkable about the same-sex movement is its success in winning the breadth of support that makes this bill possible.

What is equally noteworthy is how fragile our rights are in a time in which the MAGA politics of election denial is so mixed with white, straight, Christian nationalism and a desire to win the day without regard to what happens to Americans.

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www.terryschwadron.wordpress.com

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