By Guy Page

Both of Vermont’s senators voted Tuesday, November 29 for a federal gay marriage bill and against an amendment offering strict protection of religious rights for people and organizations, including churches. 

Both senators said voting for the bill was necessary due to, as Sen. Patrick Leahy said in a statement yesterday, “Supreme Court Justices determined to turn back the clock on basic rights.”

H.R. 8404, the “Respect for Marriage Law,” was co-sponsored by Rep. Peter Welch (D-Vermont) and passed the House of Representatives in July. Due to changes made last week by the Senate, the bill will be returned to the House for reconciliation of the House and Senate versions. If the House and Senate bills are reconciled, it will go to President Joseph Biden for his signature. 

If H.R.8404 becomes the law of the land, it will be the first time gay marriage has been approved in Congress. To date only a Supreme Court decision striking down all state laws banning gay marriage provide a legal basis for gay marriage in all 50 states. 

Senate conservatives tried and failed to protect religiously-held objections from government punishment or private legal action. 

Failing by a 48-49 vote, Amendment 6872 by Sen. Mike Lee (R-Utah) would have forbidden Congress to change the tax code, disallow deductions, withhold federal grants or other federal benefit, deny access to federal property or forums, or deny accreditation or licensing due to opposition to gay marriage. 

The Lee amendment would have prohibited Respect for Marriage from “pre-empting” current state or federal laws providing freedom of speech and religion regarding gay marriage. For example, Vermont’s gay marriage law offers specific religious protections and – unlike ‘Respect for Marriage’ – does not have a ‘right of civil action’ clause specifically empowering individuals to sue over perceived discrimination against gay marriage. 

Only one Democrat – Sen. Joe Manchin of West Virginia – voted for the Lee amendment. Two Republicans, including amendment sponsor Ben Sasse of Nebraska, were conspicuously absent for the floor vote. 

Last week, Vermont Sens. Patrick Leahy and Bernie Sanders and 59 other senators passed an amendment they say provides religious protection – a claim rejected as “lip service” by the Alliance Defense Fund, a conservative legal advocacy group. “Unfortunately, this substitute does little to fix the bill’s significant religious freedom issues. It merely gives the illusion of addressing the bill’s problems, while giving cover to those committed to supporting the bill,” the ADF said. 

The so-called Baldwin/Tillis amendment appears to narrowly protect against legal action arising from refusal to assist gay marriage ceremonies, but leaves other potential areas of conflict untouched. It reads:

SEC. 6. NO IMPACT ON RELIGIOUS LIBERTY AND CONSCIENCE. (a) In General.–Nothing in this Act, or any amendment made by this Act, shall be construed to diminish or abrogate a religious liberty or conscience protection otherwise available to an individual or organization under the Constitution of the United States or Federal law. (b) Goods or Services.–Consistent with the First Amendment to the Constitution, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action. 

Sen. Bernie Sanders  on Tuesday issued the following statement after the U.S. Senate voted to pass the Respect for Marriage Act:

“In the year 2022, we will not let an extremist Supreme Court drag us back in time. I was proud to cast my vote today to pass the Respect for Marriage Act. This important legislation will finally safeguard and enshrine marriage equality into federal law. It also, critically, repeals the Defense of Marriage Act, which for many years banned gay marriage and was something I opposed in 1996 when I served in the House of Representatives.

“I’m proud that Vermont has served as a pioneer in the marriage equality movement. Marriage has always been an inalienable right. And now today, we are on our way to protecting that right for all.”

Sen. Leahy also issued a statement:

“On behalf of Vermonters, today I was proud to vote for the final passage of the Respect for Marriage Act. Today, we became a slightly more perfect union by recognizing the sanctity of marriage between two individuals, regardless of gender or race.

“In August of this year, Marcelle and I celebrated our 60th wedding anniversary. Marrying each other was the most important decision of our lives – not a decision taken lightly, but a deeply personal commitment. A decision such as who to spend your life with should not be determined by a state, local, or federal government. It is regrettable that throughout our history, too many Americans have been denied the right to marry who they love based on their gender or race.  

“In 2012, I was proud to cosponsor an earlier version of the Respect for Marriage Act to codify the right for all Americans to marry who they love.  As Chairman of the Judiciary Committee, I also convened the first ever hearing to examine the harmful consequences the Defense of Marriage Act had, and still has, on American families.

“I am a proud cosponsor of this version of the Respect for Marriage Act. This bill – as most bills are – is far from perfect, but is a product of a bipartisan compromise.  I want to acknowledge my friend from Wisconsin, Senator Baldwin, whose steadfast resolve is the reason why this bill passed the Senate today.  In the face of Supreme Court Justices determined to turn back the clock on basic rights, a group of bipartisan Senators remained committed to the principle that all legally valid marriages between two people who love and care for each other deserve equal treatment under the law everywhere in our country.

“My home state of Vermont is no stranger to making history. Vermont has been a pioneer in the movement for LGBTQ rights.  In 2000, Vermont became the first state to introduce civil unions and the first to offer a civil union status encompassing the same legal rights and responsibilities as marriage. The state again made history in 2009 when it was the first state to allow same-sex marriage without being required to do so through a court decision. Just last year, I was so proud when former Vermont Supreme Court Justice Beth Robinson became the first openly gay woman to ascend to our federal circuit courts, on the Second Circuit.   

“Over the years, I have heard from Vermonters, colleagues, my staff, friends and family on this issue. They have told me what I already know from my marriage to Marcelle. The right to marriage – the right to love someone and build a life with them – should be equally available to all Americans.

“As I have said before, when common ground is fertile, we must plant the seeds of progress. And I believe that the Senate did that today by passing the Respect for Marriage Act.”