WASHINGTON — In announcing her support for Supreme Court nominee Brett Kavanaugh in 2018, Maine Senator Susan Collins said she believed he would respect the right to marry as settled law. Now, after Kavanaugh and his conservative colleagues overturned the court’s longstanding precedent on abortion rights this summer, Collins isn’t leaving another ruling to chance.
She was among a dozen Republicans who helped the Senate approve landmark legislation Tuesday by a margin of 61-36 to protect same-sex and interracial marriages, providing the pivotal votes to safeguard those rights from a conservative Supreme Court majority most of them helped create.
The House is expected to pass the Respect for Marriage Act next week and President Biden has promised to sign it in a major victory for the LGBTQ community. The bill, a bipartisan effort Collins helped lead, would require states to recognize any union that is valid in the state in which it was performed. The legislation also would formally repeal the 1996 Defense of Marriage Act, invalidated by the Supreme Court in 2015, that defined marriage as only between a man and a woman.
A diverse group of Senate Republicans broke ranks with their party’s leaders to help Democrats reach the 60-vote threshold needed to avoid a filibuster. Collins, a centrist who voted to confirm four of the six conservative justices on the court, rejected the suggestion that the court’s June decision overturning the nearly 50-year-old federal guarantee of abortion rights in Roe v. Wade had shaken her trust in the justices she supported.
“We have a federal law on the books called the Defense of Marriage Act that President [Bill] Clinton, a Democratic president I would point out to you, signed into law that defines marriage as between a man and a woman,” she told the Globe Tuesday before the vote. “I think we need to repeal that law.”
Other Republican supporters of the bill also said their vote was not about a lack of faith in conservative justices on same-sex marriage.
“I certainly trust all of them. I voted for three of them,” said Senator Shelley Moore Capito of West Virginia. “I don’t think it’s absolutely necessary to do this, but I think with the religious protections that are built in there, that that reflects my own personal views of same-sex marriage.”
The legislation was spurred by fears that the Supreme Court could overturn the decisions underpinning the rights to interracial and same-sex marriage. Justice Clarence Thomas raised alarms in his concurring opinion in the June decision overturning Roe, saying the court “should reconsider” all its previous precedents using the same legal rationale.
He specifically listed three decisions: Griswold v. Connecticut, in 1965, which guaranteed the right of married couples to contraceptives: Lawrence v. Texas, in 2003, which struck down sodomy laws; and Obergefell v. Hodges, in 2015, which guaranteed the right to same-sex marriage. Another decision he did not mention but that used a similar rationale was Loving v. Virginia, in 1967, which struck down laws banning interracial marriage.
The majority in the June abortion case specifically wrote that nothing in their decision “should be understood to cast doubt on precedents that do not concern abortion.” But the words from Thomas, the most senior member of a 6-3 conservative majority bolstered by three nominees from former president Donald Trump, fueled the effort by lawmakers to pass legislation to take marriage rights out of the court’s hands.
“I think this is largely driven by the reversal of nearly 50 years of precedent and the acknowledgment that the constitutional and legal grounds on which Roe v. Wade was decided were very similar to Loving v. Virginia and Obergefell,” Senator Tammy Baldwin of Wisconsin, a Democrat who partnered with Collins in crafting the bill, said in an interview.
“I know that people in both interracial marriages and same-sex marriages are very concerned about the security of their marriages,” said Baldwin, the first openly gay senator.
The bill would not codify the federal right to same-sex marriage, but supporters said it provides enough protection without infringing on religious freedoms for people and groups who oppose such unions. Several religious organizations, including the Church of Jesus Christ of Latter-day Saints, the National Association of Evangelicals, and the Orthodox Union, a Jewish organization, have publicly backed the legislation.
“Passing the bill is our chance to send a message to Americans everywhere: No matter who you are or who you love, you too deserve dignity and equal treatment under the law,” said Senate majority leader Chuck Schumer of New York, who sported the same purple tie Tuesday that he wore to the wedding of his daughter and her wife.
The House approved the Respect for Marriage Act 267-157 in July, with 47 Republicans joining every Democrat in voting for it. The bill now must be approved again in the House after it was revised in the Senate to address religious liberty concerns, changes that helped secure more Republican support. The revisions included specifying that nonprofit religious organizations are not required to provide “any services, facilities, or goods” for same-sex marriages and will not risk their tax-exempt status if they don’t recognize such unions.
But the changes weren’t enough for most Senate Republicans, who voted against the bill. Several said the religious liberty protections were not strong enough and some religious groups, including the US Conference of Catholic Bishops and the Ethics & Religious Liberty Commission of the Southern Baptist Convention, also opposed its passage.
“A single line from a single concurring opinion does not make the case for legislation that seriously threatens religious liberty,” Senator Mike Lee, a Utah Republican, said on Nov. 17 before a procedural vote advancing the legislation. “The Respect for Marriage Act is unnecessary.”
The Senate on Tuesday defeated three amendments proposed by Republicans, including one by Lee, that their backers said would strengthen the religious protections. Collins, who has publicly supported same-sex marriage since 2014, said that those changes were not necessary and that the legislation she helped craft marked an important step forward for equality.
“Let us remember that we are talking about our family members, our neighbors, our co-workers, our friends,” she said on the Senate floor before the vote. “I am proud to have stood and I will continue to stand with them in the efforts to secure their rights while also steadfastly protecting and respecting religious liberty.”
Senator Roy Blunt, a Missouri Republican, said he supported the bill because Congress shouldn’t leave the matter in the hands of judges.
“There are important times when Congress needs to say to the courts, ‘Here’s the view of the legislative branch on this issue.’ ” he said in an interview. “As opposed to the judges being able to say, ‘Well, Congress never did anything. We can just decide this means whatever we want it to mean.’ ”
Blunt, who is retiring at the end of the year, said the Supreme Court is not his “principal concern,” but rather lower courts. And Senator Mitt Romney, a Utah Republican, said his vote for the bill was not out of concern for what the current Supreme Court would do on marriage issues but what might come later.
“I don’t think they’re going to be in forever,” he said of the justices. “We’re writing law that hopefully will last beyond our lifetimes.”