The Senate vote to protect same-sex marriage reflects a long-standing political shift

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Twenty-six years ago, the U.S. Senate overwhelmingly passed the Defense of Marriage Act, a law widely supported by the American public that defines marriage as a union between a man and a woman.

Republicans had discovered an issue they would use for more than a decade to divide Democrats between their liberal base and swing voters. Eight years later, then-President George W. Bush embraced the “defense of marriage” as a central focus of his successful re-election effort in 2004. “The voice of the people must be heard,” he said when he proposed a constitutional amendment to preserve marriage between opposite-sex couples.

But the popular voice, it turns out, has always been exciting. A bipartisan group of 61 senators spoke loudly Tuesday, signaling an almost complete reversal of the once-dominant political dynamic, when they voted to effectively repeal the 1996 Respect for Marriage Act after it was re-passed by the House and signed by President Biden, will help protect the recognition of same-sex marriage imposed by the US Supreme Court in 2015. Obergefell v. Hodges ruling against future legal challenges.

While cultural divisions continue to animate politics, marriage has long since disappeared as a defining social debate. Donald Trump has made controversial statements about his support for same-sex marriage during his presidential campaigns. Now the Republican Party openly celebrates Pride month and courting LGBTQ voters. Socially conservative activists have moved on to other battles, such as the debate over transgender student-athletes. Religious institutions such as The Church of Jesus Christ of Latter-day Saints supported religious freedom provisions in the bill, which passed the Senate on Tuesday.

But the success of same-sex marriage advocates has not ended the fight for greater legal protections for LGBTQ people, who have been subjected to a wave of threats and violence in recent years. Debates over how schools should teach gender and sexual orientation became a hot issue during the midterm elections, as did the debate over whether transgender women should be able to compete in women’s sports. Democratic efforts to pass the Equality Act, which would provide non-discriminatory protections to LGBTQ people, have yet to win significant Republican support.

Barbara Simon, a senior director at GLAAD, said she is particularly troubled by a “constant drumbeat of misinformation” directed at LGBTQ communities and individuals, such as false accusations that LGBTQ people and their allies are “cutting” children.

Still, Tuesday was largely a day of celebration for same-sex marriage advocates. Senate Majority Leader Charles E. Schumer (DN.Y.), who as a congressman supported the 1996 law that banned same-sex marriage, said his first call after the bill passed Tuesday would be to his daughter, who expecting a child with her same-sex husband in the new year.

“Today is a new day for them,” Schumer said. He added that his grandson would “grow up in a more accepting, inclusive and loving world.”

By a 61-36 vote, the Senate passed a bipartisan bill on Nov. 29 that protects marriage equality for same-sex and interracial couples. (Video: The Washington Post)

Such unequivocal positions by leading politicians, including Democrats, have long been considered politically untenable. When he signed DOMA, President Bill Clinton expressed mixed feelings. “I have steadfastly opposed discrimination of any kind,” he wrote, only to allow his re-election campaign to run an ad on Christian radio boasting of his opposition to gay and lesbian weddings.

The 2008 Democratic presidential candidate, Barack Obama, also opposed same-sex marriage, a plank that his top political adviser, David Axelrod, later described as a “compromise position” built not on conviction but on political expediency.

A Gallup poll shows support for same-sex marriage has risen from 27 percent of Americans in 1996 to 71 percent this year. This puts same-sex marriage in the same category as other nearly settled societal transformations, such as public support for interracial marriage, which rose from 4 percent in 1958 to 94 percent today, and the legalization of marijuana, which rose from 12 percent in 1969 .to 68 percent today.

“All the alarm that came from marriage equality opponents on the right – ‘This is going to be the end of modern families. It’s going to be the end of Western civilization’—none of this is confirmed,” said Sasha Eisenberg, author of “The Engagement: America’s Quarter Century Struggle Over Same-Sex Marriage.” “The Democratic Party is united on this issue, and it is the Republican politicians who are torn between satisfying a significant anti-gay part of their coalition and the fact that public opinion has fundamentally turned.”

Twelve Republican senators joined a united Democratic caucus in support of the measure, which was voted on Tuesday, which also includes protections for interracial marriage and language, clarifying that it does not protect polygamous unions and would not change existing religious freedom protections.

Tuesday’s Senate action came after a vote in the U.S. House of Representatives in July in which 47 Republicans joined Democrats in supporting a similar proposal. Biden, who supported the 1996 law before announcing his support for same-sex marriage in 2011, has vowed to sign the bill.

“I think the distance we’ve come as a country is really remarkable,” said Naomi Goldberg, deputy director of the Movement Advancement Project, a nonpartisan think tank that has tracked anti-LGBTQ policies since 2006. Passing the bill is “a reminder of the hard work we’ve done and what’s possible,” Goldberg added.

Tuesday’s vote on the Respect for Marriage Act was prompted by Justice Clarence Thomas’ concurring opinion in the Supreme Court’s June decision to strike down a constitutional right to abortion established decades ago in Roe v. Wade. Thomas argued that court precedents that rely on such constitutional analysis should also be reviewed, including the court’s 2015 decision legalizing same-sex marriage and previous rulings that struck down laws against sodomy and access to contraceptives.

The bill passed Tuesday does not immediately change the legal status of same-sex marriage and does not require states to perform same-sex marriages. But if Thomas and his legal allies have their way when it comes to overturning previous court decisions, the new law would preserve federal recognition of same-sex marriages and require states to recognize those marriages in other states.

After the House vote this summer, a bipartisan group of five senators, including the first openly gay person elected to the Senate, Democrats Tammy Baldwin of Wisconsin and Kirsten Sinema (D-Arizon), quickly began working behind the scenes to gather the most -less than 10 Republicans to break the House’s 60-vote threshold. They saw an opportunity to reassure Americans in same-sex marriage that the Supreme Court could not annul their marriages if they, too, chose to annul Obergefell precedent.

Several Republicans said they want to support the bill but worry it doesn’t do enough to reassure religious groups that they won’t be penalized for not supporting same-sex marriage. The group amended the bill to address those concerns and then pushed the vote until after the midterm elections, when some Republicans said they would feel more comfortable taking a potentially controversial vote.

In mid-November, 12 Republicans joined all 50 Democrats to push the bill, including some surprise allies like Sen. Cynthia M. Loomis (R-Wyo.), who had a zero rating from the gay rights group Human Rights Campaign during of her time in the House and Sen. Dan Sullivan (R-Alaska), who ran to ban same-sex marriage less than a decade ago.

“These are turbulent times for our nation,” Loomis said on the Senate floor, explaining that her vote was aimed at making the country less divided and more tolerant. “For the sake of our nation today and its survival, we do well to take this step.”

Baldwin said the legislation would ease the “anxieties and fears” of same-sex and interracial couples as a result of Dobbs decision on abortion.

“We’re not pushing for this legislation to go down in history,” Baldwin said Tuesday. “We’re doing this to make a difference for millions and millions of Americans.”

Republicans who voted against the measure argued it was unnecessary because they did not believe the Supreme Court would overturn it or said it did not sufficiently protect religious freedom.

Sen. James Lankford (R-Okla.) listed numerous groups that oppose the bill, including the U.S. Conference of Catholic Bishops, and said the bill puts “religious freedom at risk” for many Americans. Other Republican senators, including Sen. Mike Lee of Utah, have expressed similar concerns.

The new federal law leaves untouched rules in 35 states where same-sex marriage is prohibited in their constitutions, state law or both, according to a recent Pew report. Those laws could go back into effect if the Supreme Court overturns its 2015 ruling, worrying people like Josh Roth, a 33-year-old donor who lives in Orlando. Roth said that if marriage equality becomes federal law, it will only temporarily make him feel safer.

Roth said he was concerned his home state could challenge federal protections. The Republican legislature quietly rejected a proposal earlier this year to repeal a law that banned same-sex marriage in the state. Continued political uncertainty has shaped his own decision to marry his longtime partner. They got engaged last August, but after the Supreme Court overturned Roe v. Wade in June, Roth and his partner discussed whether they should move their wedding date.

“If there is a state in the union that will try to challenge Obergefellgoing to Florida,” Roth said.

While debates continue over whether to limit discussions of LGBTQ issues in schools and how to approach transgender issues, some LGBTQ advocates say there are lessons to be learned from the success of same-sex marriage.

“We’ve spent two decades and now three decades educating about marriage equality and what it means to be in a same-sex relationship,” said David Stacey, head of government affairs at the Human Rights Campaign, an LGBTQ advocacy group. “These are concepts that people are still coming to terms with.”

Marriage equality, said GLAAD’s Simon, is “a great success — but it’s not everything.”

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