Why the coming Senate vote on same-sex marriage matters

On July 28, Sen. Susan Collins (R-Maine) told the Huffington Post that Senate Democrats’ privately-negotiated agreement with Sen. Joe Manchin (D-W.Va.) to adopt a climate and tax bill surprised Republicans and may jeopardize their support for the same-sex marriage bill.

On July 19, the House adopted the “Respect for Marriage Act” (RMA) by a 267-157 vote, with 47 Republican members in support. Ten Republican Senators are needed to bypass the filibuster, and five — including Collins — had already announced their backing. If they pull it because of the climate deal, we’d have Exhibit A in their preference for payback over policy, including equal treatment for all citizens.

The RMA arose from concern that the Supreme Court may reverse two earlier rulings that provide marriage protection.

First, in its 2013 decision in United States v. Windsor, the Court invalidated the 1996 Defense of Marriage Act’s provision that prohibited the federal government from recognizing same sex marriages. Windsor opened married LBGTQ couples’ access to federal benefits, such as the benefits spouses have under Social Security.

Then, in 2015, the Court delivered its historic 5-4 ruling in Obergefell v. Hodges, which held that the constitution protects same-sex marriage nationwide as a fundamental right. No state could any longer forbid LBGTQ people from marrying.

However, alarm bells recently began to sound when Justice Clarence Thomas wrote in his concurring opinion in the June 24 Supreme Court’s decision overturning Roe v. Wade that Obergefell should be “reconsidered.”

The road toward stripping LGBQT people of their right to marry may be paved this fall or winter in case of 303 Creative LLC v. Elenis, which is currently before the Court. The case was brought by a Colorado graphic designer who opposes same-sex marriage on religious grounds. She wants to expand her business into designing wedding websites but claims Colorado’s law prohibiting businesses from discriminating based on sexual orientation violates her free speech rights.

The case does not directly challenge the constitutionality of gay marriage — but a ruling for the graphic designer would be a steppingstone toward the ultimate demise of Obergefell.

If the Court overturns Obergefell and Windsor, that would leave in effect the Defense of Marriage Act, which is still on the books. The RMA would repeal it and require federal recognition of same-sex marriage. The bill would also compel each state to recognize valid marriages from other states.

The RMA does not do something important, however. It does not require each state to permit same-sex marriage. Hence, if the court overturns Obergefell, states would still be free to ban same-sex marriage.

The apparent reason for leaving LGBTQ marriage to each state is to enhance prospects for bipartisan support that a more protective bill might jeopardize. The 47 Republicans voting “yes” in the House validated that strategy.

The country has made enormous progress in support for gay equality. The 1996 House vote for DOMA and against same-sex marriage was 342-67. The June 19 267-157 House vote for gay marriage represents a 200 vote turnaround in a 438-member body.

That reflects the growth in public support. According to Gallup polling, between 1996 and 2022, approval of same-sex marriage rose from 27 percent to 71 percent.

From personal experience as a civil lawyer, I know how profoundly committed to their equality LBGTQ people are. When DOMA was enacted, gay activists in San Francisco convinced local legislators to adopt the pioneering Equal Benefits Ordinance, a legal building block toward same-sex marriage. The ordinance required companies contracting with the city to provide the same employment benefits to employees with domestic partners as the companies provided to married employees.

I successfully defended that law against anti-gay national televangelist Pat Robertson’s legal defense fund and United Airlines. The sworn testimony of United Airlines’ gay employees was crucial. They described their tragic experiences as second class citizens in not having equal health, bereavement and other benefits.

When those witnesses first offered to testify, we warned them of the personal risks in opposing an employer in court. Their words in response channeled 1955 civil rights champion Rosa Parks in Montgomery, Ala., and still ring in my ears: “We’re not going to the back of the bus.”

That was 25 years ago. If equal entitlement to the fundamental right to marry is taken away from LGBTQ people now, do not expect activists to go quietly into the night. The reaction is likely to be even more fierce than women’s responses to the end of abortion rights.

The bipartisan House vote on July 19 reflected the public’s evolution on LGBTQ rights over decades and the expression of popular will. Those committed to equal marriage rights should press their Senators.

Since Civil War days, equal treatment of all citizens under the law has been a foundation of this country.

Dennis Aftergut, a former federal prosecutor and former Chief Assistant City Attorney in San Francisco, has argued successfully in the U.S. Supreme Court. He is currently of counsel to Lawyers Defending American Democracy.