[Congressional Record Volume 168, Number 183 (Tuesday, November 29, 2022)]
[Senate]
[Pages S6833-S6846]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
RESPECT FOR MARRIAGE ACT--Continued
The PRESIDING OFFICER. The Senator from Colorado.
Club Q Shooting
Mr. BENNET. Madam President, before the Thanksgiving break, I planned
to use my time today to talk about the Respect for Marriage Act, with
which the Presiding Officer has had such an important role playing, and
I want to congratulate her on the incredible work that she has done to
get this over the finish line, because we are on the verge of passing
the Respect for Marriage Act in the U.S. Senate. It is a historic piece
of legislation to ensure that if a same-sex or interracial couple
marries in one State, that every State has to honor that marriage. The
Federal Government has to honor that marriage as well.
There may be no right closer to the heart than marrying the one that
you love, and Colorado understands that. And I was going to come down
here to talk about how, over decades, my State has led the way on
equality. We recognized civil unions in 2013. We banned conversion
therapy in my State. We passed our own version of the Equality Act in
Colorado.
I was going to come down here and tell you about how Colorado
understands what equality has come to mean in America in 2022, but in
the last week, I have been reminded again just how far we have to go.
Last Sunday, Coloradans woke up to the news that Club Q--a loving,
accepting, 20-year old LGBTQ club in Colorado Springs--had been the
target of a mass shooting. Five Coloradans were killed, and at least 22
were injured.
In the days since, Coloradans have described Club Q as a center of
community building, a place where everyone could be their true selves
and live without fear.
Club Q's owner, Nic Grzecka, said he founded the club to ``be that
safe place for people to come and feel and understand that they are
normal--that the way they feel is normal and there are people just like
them.''
As a father, that is what I hope for my three daughters, and, as a
former school superintendent, that is what I wish for the children that
I worked for. We want our kids to feel normal and loved and like they
belong.
But on November 19, these feelings of safety and acceptance that Club
Q had built over two decades were shattered. On the same day that we
recognized Trans Day of Remembrance, we added more names to the solemn
toll in this country, when a violent young man, radicalized by hateful
and divisive rhetoric, killed five people and forever changed a
community, forever changed my State.
In minutes, he robbed from us brothers and sisters and daughters and
sons, friends, and loved ones, who were there just being themselves,
not bothering anybody.
He took from us Derrick Rump, a 38-year-old bartender and co-owner of
Club Q, who bought groceries for others during the hardest 2 months of
the pandemic; Daniel David Aston, 28 years old, a bar supervisor known
as the ``master of silliness'' because of his contagious happiness and
joy; Kelly Loving, 40 years old, who had just moved to Colorado and was
trying to enjoy a weekend trip to Colorado Springs; Ashley Paugh, 35
years old, a devoted mother and nonprofit worker, who loved hunting and
fishing, like so many other Coloradans, and was there to support the
community; and Raymond Green Vance, 22 years old--22 years old--who
grew up in Colorado Springs and had just started a new job and was
saving up for his own apartment.
I am thinking of them and their families and all of those who
survived this terrible tragedy in Colorado--people who imagined that
there was one space that you could go to feel safe, and then this
happens.
It fills me with rage that it happened. It fills me with sadness. It
should fill the entire Senate with rage and sadness.
And if it weren't for the courage of people like Richard Fierro and
Thomas James, the list of names I read, already too long, would have
been longer.
Thomas James, a petty officer second class in the Navy, used his
military crisis training to help subdue the
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attacker. He said he jumped into action because he ``simply wanted to
save the family [he] found'' at Club Q.
And Richard Fierro. Richard Fierro, an Iraq and Afghanistan combat
veteran, was watching a friend's performance with his wife, daughter,
and friends inside the club when the gunfire started, and his
protective instincts--Richard's protective instincts from four combat
deployments--kicked in. He said he went ``into combat mode.''
No one enjoying a night with their friends and their family should
have to go ``into combat mode'' in the United States of America. That
is not the country that I grew up in.
It is our country today. It is the country that the pages in this
institution are inheriting from us. My daughter's generation and the
children I used to work for in the Denver Public Schools, they bear a
burden that I never bore growing up in the United States. They have
grown up living with a reasonable fear that they could be shot in their
classrooms or in their churches or in a grocery store or in a bar that
is the one safe place in their community that they could go to.
In 2020--the pages that are here may not know this. In 2020, the
leading cause of death for kids in America was guns--guns--not car
accidents, not drugs, but guns.
In one study of 29 industrialized countries, the United States
accounted for 97 percent of firearm deaths among children 4 years old
and younger. That is almost 100 percent of the kids who are dying on
planet Earth from gunfire who are 4 years old and younger. What a
disgrace. What a disgrace.
We shouldn't need to count on a stranger's bravery when we go to a
birthday party. We shouldn't need to count on a stranger's bravery when
we go to the grocery store.
It was just last year when I spoke on this floor to remember the
lives we lost in Colorado at a King Soopers in Boulder, and it is with
unimaginable pain that I am here once again on this floor with a list
of names of people who have lost their lives senselessly.
Colorado is hurting. We are tired of this. For more than two decades,
we have had to grieve over one incident after another.
So while we stand here on the verge of taking a historic step toward
equality--a vitally important step toward equality--we are reminded
once again of just how much work is left to do to give our children the
safe and accepting future that they deserve, that they want to have,
that we are obligated to give them. We haven't finished that work in
the U.S. Senate.
Earlier this year, the Supreme Court stripped away the first
fundamental right since Reconstruction by overturning a 50-year
precedent in Roe v. Wade, and in that decision, the majority took aim
at the fundamental right of privacy and, with it, the right of every
single American to marry whom they love.
It is a profound reminder--once again, a reminder--to everybody in
this body and to the country, that our history has been from the very
beginning a battle between the highest ideals that humans have ever
written down on the page--the words in the Constitution of the United
States--and the worst impulses in human history.
And when a Justice of the Supreme Court writes that if it wasn't a
freedom in 1868, it is not a freedom today, we are in that struggle
today.
When a 22-year-old can walk into a club and kill 5 people and wound
more than 20 people, we are in that struggle today.
The reason we are here today doing the important work that we are
doing in the marriage act that we are passing today is that Americans
understand that no good comes from hoarding freedoms and equality. They
know that when we take the opposite view, we act against our best
traditions, against our highest ideals. As a nation, we will never
flourish if we choose to depend on a permanent underclass, deprived of
some or all of the rights and freedoms others enjoy.
Free people do not remain free by denying freedom to others. Today,
the Senate of the United States stands on the precipice of advancing
freedom, of advancing equality, of moving us closer to our highest
ideals.
But, tomorrow, we have more work to do to live up to the words of our
Constitution and to realize the promise of equality for all of our
citizens.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call the roll.
Mr. LEE. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 6482 to Amendment No. 6487
Mr. LEE. Madam President, I call up my amendment No. 6482, and ask
that it be reported by number.
The PRESIDING OFFICER. The clerk will report the amendment by number.
The senior assistant legislative clerk read as follows:
The Senator from Utah [Mr. Lee], for himself and others,
proposes an amendment numbered 6482 to amendment No. 6487.
The amendment (No. 6482) is as follows:
(Purpose: To improve the bill)
At the end, insert the following:
TITLE II--RELIGIOUS BELIEFS AND MORAL CONVICTIONS
SEC. 201. PROTECTION OF THE FREE EXERCISE OF RELIGIOUS
BELIEFS AND MORAL CONVICTIONS.
(a) In General.--Notwithstanding section 7 of title 1,
United States Code, section 1738C of title 28, United States
Code, or any other provision of law, the Federal Government
shall not take any discriminatory action against a person,
wholly or partially on the basis that such person speaks, or
acts, in accordance with a sincerely held religious belief,
or moral conviction, that marriage is or should be recognized
as a union of--
(1) one man and one woman; or
(2) two individuals as recognized under Federal law.
(b) Discriminatory Action Defined.--As used in subsection
(a), a discriminatory action means any action taken by the
Federal Government to--
(1) alter in any way the Federal tax treatment of, or cause
any tax, penalty, or payment to be assessed against, or deny,
delay, or revoke an exemption from taxation under section
501(a) of the Internal Revenue Code of 1986 of, any person
referred to in subsection (a);
(2) disallow a deduction for Federal tax purposes of any
charitable contribution made to or by such person;
(3) withhold, reduce the amount or funding for, exclude,
terminate, or otherwise make unavailable or deny, any Federal
grant, contract, subcontract, cooperative agreement,
guarantee, loan, scholarship, license, certification,
accreditation, employment, or other similar position or
status from or to such person;
(4) withhold, reduce, exclude, terminate, or otherwise make
unavailable or deny, any entitlement or benefit under a
Federal benefit program, including admission to, equal
treatment in, or eligibility for a degree from an educational
program, from or to such person; or
(5) withhold, reduce, exclude, terminate, or otherwise make
unavailable or deny, access or an entitlement to Federal
property, facilities, educational institutions, speech fora
(including traditional, limited, and nonpublic fora), or
charitable fundraising campaigns from or to such person.
(c) Accreditation; Licensure; Certification.--The Federal
Government shall consider accredited, licensed, or certified
for purposes of Federal law any person that would be
accredited, licensed, or certified, respectively, for such
purposes but for a determination against such person wholly
or partially on the basis that the person speaks, or acts, in
accordance with a sincerely held religious belief or moral
conviction described in subsection (a).
SEC. 202. JUDICIAL RELIEF.
(a) Cause of Action.--A person may assert an actual or
threatened violation of this title as a claim or defense in a
judicial or administrative proceeding and obtain compensatory
damages, injunctive relief, declaratory relief, or any other
appropriate relief against the Federal Government. Standing
to assert a claim or defense under this section shall be
governed by the general rules of standing under article III
of the Constitution.
(b) Administrative Remedies Not Required.--Notwithstanding
any other provision of law, an action under this section may
be commenced, and relief may be granted, in a district court
of the United States without regard to whether the person
commencing the action has sought or exhausted available
administrative remedies.
(c) Attorneys' Fees.--Section 722(b) of the Revised
Statutes (42 U.S.C. 1988(b)) is amended by inserting ``title
II of the Respect for Marriage Act,'' after ``the Religious
Land Use and Institutionalized Persons Act of 2000,''.
(d) Authority of United States To Enforce This Title.--The
Attorney General may bring an action for injunctive or
declaratory relief against an independent establishment
described in section 104(1) of title 5, United States Code,
or an officer or employee of that independent establishment,
to
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enforce compliance with this title. Nothing in this
subsection shall be construed to deny, impair, or otherwise
affect any right or authority of the Attorney General, the
United States, or any agency, officer, or employee of the
United States, acting under any law other than this
subsection, to institute or intervene in any proceeding.
SEC. 203. RULES OF CONSTRUCTION.
(a) No Preemption, Repeal, or Narrow Construction.--Nothing
in this title shall be construed to preempt State law, or
repeal Federal law, that is equally or more protective of
free exercise of religious beliefs and moral convictions.
Nothing in this title shall be construed to narrow the
meaning or application of any State or Federal law protecting
free exercise of religious beliefs and moral convictions.
(b) No Prevention of Providing Benefits or Services.--
Nothing in this title shall be construed to prevent the
Federal Government from providing, either directly or through
a person not seeking protection under this title, any benefit
or service authorized under Federal law.
(c) No Affirmation or Endorsement of Views.--Nothing in
this title shall be construed to affirm or otherwise endorse
a person's belief, speech, or action about marriage.
(d) Severability.--If any provision of this title or any
application of such provision to any person or circumstance
is held to be unconstitutional, the remainder of this title
and the application of the provision to any other person or
circumstance shall not be affected.
SEC. 204. DEFINITIONS.
In this title:
(1) Federal benefit program.--The term ``Federal benefit
program'' has the meaning given that term in section 552a of
title 5, United States Code.
(2) Federal; federal government.--The terms ``Federal'' and
``Federal Government'' relate to and include--
(A) any department, commission, board, or other agency of
the Federal Government;
(B) any officer, employee, or agent of the Federal
Government; and
(C) the District of Columbia and all Federal territories
and possessions.
(3) Person.--The term ``person'' means a person as defined
in section 1 of title 1, United States Code, except that such
term shall not include--
(A) publicly traded for-profit entities;
(B) Federal employees acting within the scope of their
employment;
(C) Federal for-profit contractors acting within the scope
of their contract; or
(D) hospitals, clinics, hospices, nursing homes, or other
medical or residential custodial facilities with respect to
visitation, recognition of a designated representative for
health care decisionmaking, or refusal to provide medical
treatment necessary to cure an illness or injury.
Mr. LEE. Madam President, today, as popular winds blow against the
man and woman of faith, we should look to the Constitution and remember
that ``Congress shall make no law respecting an establishment of
religion or prohibiting the free exercise thereof . . . '' We do a
disservice to all Americans if we elevate the rights of one group at
the expense of another.
On the one hand, there is no existing threat to same-sex marriage. It
is and will remain legal nationwide regardless of the outcome of this
legislation before us, the Respect for Marriage Act. On the other hand,
we have current, real, sustained ongoing assaults on religious freedom.
How we proceed today will do nothing to the status quo of same-sex
marriage in this country. It is legal and will remain legal regardless
of the outcome of this legislation. It will, however, if enacted, have
profound consequences for people of faith.
In the wake of the Dobbs decision, proponents of this legislation
have conjured up a series of hypothetical scenarios, resulting in an
imagined threat to the ability of same-sex couples to marry and enjoy
the privileges of marriage.
The rhetorical slippery slope goes something like this: First, they
claim that some unknown, unnamed State is on the verge of passing an
unknown, yet-to-be-proposed or imagined law prohibiting same-sex
marriage. Next, they imagine that Federal district courts will uphold
this hypothetical State law despite the crystal-clear direction within
the Dobbs and Obergefell opinions from the Supreme Court.
Should that adventure of unlikely hypotheticals transpire, they
envision a case making its way all the way up to the Supreme Court of
the United States. All of this despite the lack of political will
anywhere in the United States to prohibit same-sex marriage.
Should that happen, proponents of this bill contend that there is a
nonzero chance that one Justice could decide to analyze the right to
marry not through the prism of substantive due process, as it has been
since Obergefell was decided in 2015, but rather through the lens of
the 14th Amendment's privileges or immunities clause.
Proponents of the bill cite a single line within Justice Thomas's
concurring opinion and suggest that one Justice could effectively
destroy legal recognition of same-sex marriage not just prospectively
but undoing currently legal same-sex marriage.
Now, this is a complete fantasy. I am not aware of a single State in
the United States threatening to pass any law infringing the ability of
any same-sex couples to marry or enjoy privileges associated with
marriage; nor am I aware of a single State threatening to invalidate,
within their borders, marriages entered into in other States; nor is it
at all clear that Justice Thomas himself was suggesting that Obergefell
be overturned. He was suggesting that it be analyzed, like all
substantive due process juris prudence, to figure out whether there
might be another provision of the Constitution under which it might be
more appropriate.
They are attributing to him statements he didn't make. They are
attributing to him analysis he didn't even undertake in that one
statement regarding the doctrine of stare decisis, and then they are
attributing to States intentions they do not have and have not
expressed.
My colleagues have yet to offer even a single example of a same-sex
marriage threatened by any current or pending State legislation--not
one, not a single one--and they intentionally misinterpret Justice
Thomas's concurring opinion in Dobbs and claim that the sky is falling.
But it is just not happening.
Unfortunately, we are aware of case after case where individuals,
charities, small businesses, religious schools, and religious
institutions are being hauled into courts to defend themselves for
living out their faith. These people are not committing hate crimes
against their neighbors. No, they are not abusing peers for their
personal choices either.
No, they are being hauled into courts across this country for serving
the poor, the needy, and the refugee in compliance with their sincerely
held religious beliefs. In Texas, the United States Conference of
Catholic Bishops is currently being sued for operating in accordance
with Catholic beliefs regarding marriage while providing foster homes
for unaccompanied minor children.
Now, proponents of this bill claim that these charities will be free
to continue to operate. However, in that case, the question is whether,
because the Conference of Catholic Bishops receives Federal funding to
help with its work, it might be operating under color of law. If
accepting grants and licenses from the government makes you an actor
under color of law, then many of our religious charities and schools
will be threatened by this legislation, which relies on that
unnarrowed, undefined phrase. Either the U.S. Conference of Catholic
Bishops can cease operating according to its religious tenets or
abandon its God-given mission to care for the refugee.
In at least three other cases, religious childcare service agencies
deemed to be acting under color of law are being shut out of foster
care and adoption. These religious ministries can either abandon and
cease to act according to their convictions, their religious
convictions about marriage, or they can abandon the orphan.
This Nation and our orphans rely on these charities. We cannot and
must not force that decision on them. That isn't who we are. From the
very moment of our founding, we have been a nation that has welcomed
people of all beliefs and of no belief at all.
In recent years, the Obama administration, through the U.S.
Department of Education, compiled a so-called shame list outlining more
than 200 faith-based colleges and universities seeking religious
exemptions from title IX guidance on transgender and sex
discrimination. It is highly likely that these organizations could also
risk losing their 501(c)(3) status.
Considering that we are in the process of hiring 87,000 new agents
within the Internal Revenue Service, it is not beyond the realm of
possibility that some of these new IRS agents will be deployed
specifically to review the tax-
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exempt status of some of these traditionally exempt religious schools.
These colleges and universities can either cease operating according to
their religious convictions or run the risk of losing their ability to
provide quality education at reduced prices. We may well find that they
will not be able to do both, and that would be a tragedy.
Dr. Andrew Fox created a chaplaincy program at the Austin Fire
Department, where he served as the lead chaplain in a volunteer
capacity for 8 years, earning the trust and respect of local
firefighters. In a personal blog--nothing connected to his work, just a
personal blog--Dr. Fox shared his religious views, his religious views
specifically regarding marriage.
City officials demanded he recant his statements and apologize for
the harm that his blog post allegedly caused. He explained that he
intended only to foster discussion and not cause offense, and he
apologized if anyone was offended. His apology apparently wasn't enough
for city officials who demanded total compliance with their preferred
views on marriage, views that didn't embrace his own religious beliefs.
They forced Dr. Fox to hand in his uniform. He could keep his job or
his beliefs but not both.
We should not be surprised by the current state of affairs. After
all, it was abundantly clear during the Obergefell oral argument before
the Supreme Court that this threat to religious nonprofits would be
forthcoming. The prescient exchange between Justice Alito and then-
Solicitor General Donald Verrilli forecasted the present hostility and
the corresponding threats to religious organizations.
Justice Alito asked whether, should States be required to recognize
same-sex marriages, religious universities could lose their tax-exempt
status. His response, the response from Solicitor General Verrilli, was
chilling. He said:
[I]t's certainly going to be an issue. I don't deny that. I
don't deny that, Justice Alito. It is going to be an issue.
It is an issue today, and under this legislation it will only get
worse tomorrow unless we take affirmative steps to prevent that from
happening. And we have the opportunity to do so here, and we shouldn't
miss it.
Unlike the hypothetical but entirely nonexistent marriages being
threatened or discriminated against, these religious organizations are
currently, right now, in court fighting for their God-given and
constitutionally protected rights to live and operate according to
their beliefs and conscience. They are being targeted and harassed by
those who would force them to abandon their convictions and embrace the
convictions preferred by the government.
Sadly, the hostages at risk in this standoff are those who have
benefited from the charitable work of these institutions: the poor, the
hungry, the refugee, the student, and the orphan. Instead of resolving
the concern posed by Justice Alito, this legislation will put the
weighty thumb of government on the scale against religious
organizations and individuals.
Now, they say: Don't worry; you can still believe as you wish. But
if, in living out your faith, you offend the views sanctioned by the
government, you will suffer the consequences.
What do we get for this heavy sacrifice of religious freedom? Are we
alleviating the suffering of same-sex families about to be destroyed by
government interference? No. As I have said, we haven't heard of even
one potential threat to same-sex marriage, not one. The only outcome we
can expect from this legislation is for religious individuals,
businesses, and institutions to spend more time and more money
defending their God-given rights in court.
In our pluralistic society, we must be willing to compromise and
adapt so that we might live peacefully, peaceably with one another. In
that spirit of compromise, let us ensure that we are protecting
families--both traditional and same-sex families--and that we are
protecting the right to believe as we wish and live out those beliefs
without government interference. I believe we can do both. In fact, I
know we can do both.
Now, the Collins-Baldwin amendment takes a step in the right
direction, and I am grateful for that. Rabbis, imams, and pastors
should never be forced to perform a marriage contrary to their beliefs.
But religious liberty is so much more than marriage. It entails so much
more than what might go on within the four walls of a mosque, a
synagogue, or a church. It certainly entails and must include the
ability of people to practice their faith not only at church but at
home and in the public square.
In the hope that we can come to a place where we respect each other,
I have offered an amendment to this legislation that would explicitly
minimize the threats to these religious organizations and individuals.
I am at the table. I am willing to compromise. In the spirit of
compromise, I have publicly stated--and I reiterate here again today--
that I will support the legislation if my amendment is adopted.
My amendment simply prohibits the Federal Government from
discriminating against schools, businesses, and organizations based on
their religious beliefs about same-sex marriage. That is all it does.
It is very simple, and I am grateful that we are going to have the
chance to vote on it later today.
I am also grateful for the work of my friend and colleague Senator
Dan Sullivan from Alaska, who, working together with several of my
other Republican colleagues, helped secure and schedule this vote. I am
grateful to him for that effort.
My amendment prevents the Internal Revenue Service, among other
things, from revoking the tax-exempt status of these charities and
organizations simply because they act according to their beliefs about
the divine purpose of marriage. It prevents the Department of Education
from targeting schools with honor codes based on the fact that they
have got provisions in their honor codes based on religious beliefs.
It protects individuals from being denied business licenses or grants
or other statuses based on their views about marriage. It protects
Americans who wish to act according to their religious beliefs from
being forced to abandon their God-given mandates to love, serve, and
care for the poor, the orphan, and the refugee.
If we allow the government to threaten their ability to do so, then
the religious liberty of every American is in peril. That is why I
would ask those who have doubts about this to reconsider their doubts
about my amendment. If they object to my amendment and are inclined to
vote against it based on the fact that they regard it as unnecessary,
then why not pass it.
This is a legitimate concern--some may argue this--I have been told
by many of the bill's sponsors that my amendment is unnecessary
because, according to them, the Collins substitute amendment contains
protections that already accommodate this concern.
Now, the Collins substitute amendment does, in fact, contain some
protections. I am grateful that those were included, and that is a
meaningful step in the right direction. I must point out, however, that
it doesn't do what my amendment does and therefore doesn't do what many
of its proponents are claiming.
Nowhere in that legislation is a statement prohibiting the Federal
Government from taking adverse action against an individual or an
entity based on a sincere religious belief about same-sex marriage,
whether that religious belief is one that embraces or does not embrace
same-sex marriage. It does not do that. It instead says that nothing in
this act shall be construed to alter or deny any status or benefit of
any group. Those are two very different things.
That language does not do what my amendment does. You see, the threat
is not and never was based on what the act itself would do. The act
doesn't purport to itself deny or alter any status or benefit or right.
So by taking that away, they are paying lipservice to the need for my
amendment, but they are not actually addressing it.
The threat has been present at least since Obergefell itself was
decided for the reasons that prompted Justice Alito to ask then-
Solicitor General Verrilli a question about it and the same reasons
that prompted Solicitor General Verrilli to acknowledge that it was
going to be an issue. Those same reasons exist today. They don't go
away because of this legislation. If anything, they are enhanced. The
risk is enhanced as a result of this legislation.
That is why this is the perfect opportunity, it is the right
opportunity, it may very well be the only opportunity
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to make sure that, as we are undertaking a legislative effort to codify
rights for one group of Americans, we don't do so in a particularly un-
American way; that is, enhance the rights of some at the expense of
others. That is not how we roll. That is not how we do things in this
country. We can protect both of these interests at the same time, just
as we can walk and chew gum.
So for those who would say the Lee amendment isn't necessary because
the Collins amendment already takes care of it, that is just not true.
And even if it were true, why not accept the Lee amendment anyway?
Which begs the question: Why wouldn't anyone want to deny the Federal
Government the authority to retaliate against individuals, nonprofits,
and other entities based on their sincerely held religious beliefs?
Think about that for a minute. Why wouldn't they want to deny that very
power from a government that may wield it in a way that is
categorically abusive?
For my Republican friends who are sympathetic to the need for my
amendment and are going to support it, I would ask that if they support
it and if the amendment fails, that you not support the underlying
bill, because if you support my amendment, hopefully, presumably, that
means it is because you agree that it does something--that it does
something necessary. It certainly doesn't counteract, contradict, or
undermine the stated purpose of this bill in any way. So if you believe
that it is necessary and you are going to vote for it, if it fails, you
should oppose passage of this bill unless or until the Lee amendment is
adopted.
We could get this done. I understand that it is not going to happen
as long as there are at least 10 Republicans willing to join with every
Democrat in order to support this legislation. But if even 3 of the 12
Republicans considering support for this legislation in the end--if
even 3 of them supporting my amendment would decide not to support the
bill unless or until the Lee amendment was added, I am confident--
indeed, I am certain--that it could and would ultimately be adopted.
As I said, we must be willing to compromise to protect the interests
of all. I urge my colleagues to support my amendment, which would
ensure that all Americans would have certain rights and that their
religious beliefs and their moral convictions will be explicitly
protected and provide some comfort that Congress is not purposely
passing laws that restrict the free exercise of religion.
The PRESIDING OFFICER. The Senator from Oklahoma.
Amendment No. 6493 to Amendment No. 6487
Mr. LANKFORD. Madam President, on behalf of Senator Rubio, I call up
amendment No. 6493 and ask that it be reported by number.
The PRESIDING OFFICER. The clerk will report by number.
The senior assistant legislative clerk read as follows:
The Senator from Oklahoma (Mr. Lankford), for Mr. Rubio,
proposes an amendment numbered 6493 to amendment No. 6487.
The amendment is as follows:
(Purpose: To eliminate a private right of action)
Section 1738C of title 28, United States Code, as added by
section 4, is amended by striking subsections (c) and (d) and
inserting the following:
``(c) State Defined.--In this section, the term `State' has
the meaning given such term under section 7 of title 1.''.
Amendment No. 6496 to Amendment No. 6487
Mr. LANKFORD. I would like to also call up amendment No. 6496 and ask
that it also be reported by number.
The PRESIDING OFFICER. The clerk will report by number.
The senior assistant legislative clerk read as follows:
The Senator from Oklahoma [Mr. Lankford] proposes an
amendment numbered 6946 to Amendment No. 6487.
The amendment is as follows:
(Purpose: To improve the bill)
On page 3, beginning on line 3, strike ``No person acting
under color of State law'' and insert ``No State, territory
or possession of the United States, or Indian Tribe''
On page 3, line 17, strike ``person'' and insert ``State,
territory or possession of the United States, or Indian
Tribe''.
On page 3, strike lines 19 through 23.
On page 5, strike line 20 and all that follows through page
6, line 3, and insert the following:
(a) No Impact on Benefits, Status, or Rights.--Nothing in
this Act, or any amendment made by this Act, shall be
construed to deny or alter any benefit, status, or right
(including tax-exempt status, tax treatment, educational
funding, or a grant, contract, agreement, guarantee, loan,
scholarship, license, certification, accreditation, claim, or
defense) of any entity or person--
(1) if such benefit, status, or right does not arise from a
marriage; or
(2) if such potential denial or alteration would be based
in whole or in part on the belief, practice, or observance,
of the entity or person about marriage.
On page 6, between lines 8 and 9, insert the following:
(c) No Impact From Partnerships.--For purposes of this Act,
and any amendment made by this Act, no faith-based
organization shall be considered to be acting under color of
State law on the basis of any partnership the organization
entered into with a government.
Mr. LANKFORD. Madam President, in 2015, after the Obergefell decision
came down from the Supreme Court, putting same-sex marriage as the law
of the land, President Obama made a statement to the country. He came
and spoke to the country when there was a lot of heat and a lot of
emotion going on around the country around that particular decision. He
was supportive of the Obergefell decision, but he made this statement.
At that time, President Obama said:
I know that Americans of goodwill continue to hold a wide
range of views on this issue. Opposition in some cases has
been based on sincere and deeply held [religious] beliefs.
All of us who welcome today's news should be mindful of that
fact; recognize different viewpoints; revere our deep
commitment to religious freedom.
That is a wise statement from President Obama during that time period
to be able to say: There are going to be a lot of views. We as
Americans need to have a wide set of conversations about same-sex
marriage and about how we revere marriage in general. There are
different religious views, different perspectives.
Now we are approaching a bill that will be voted on in just about 2
hours. This bill has a section in it dealing with marriage, and it says
it has certain religious protections in it.
As I read the bill initially to be able to check the religious
protections that are in it, I was surprised at some things that were in
it, and I was surprised at some of the things that were left out. So
our team went to work writing an amendment to address the specific
issues in this bill. We narrowly tailored this bill for our amendment,
and we addressed it. Why? Because we were the only ones who thought
there was a problem? Actually, no, we weren't the only ones who saw
this bill as a problem dealing with religious liberty. In fact,
religious liberty groups all over the country and religious
institutions started contacting our office and putting out their own
statements in opposition to this bill, saying the bill as currently
written, even with the ``religious protections'' in it, does not
actually protect the religious liberty of all Americans.
This is just a short list of groups who are in strong opposition to
this bill: the Alliance Defending Freedom, the American Association of
Christians Schools, CatholicVote, the Center for Urban Renewal and
Education, the Centennial Institute, the Christian Employers Alliance,
Concerned Women for America, Eagle Forum, the Ethics and Public Policy
Center, the Ethics and Religious Liberty Commission, the Faith and
Freedom Coalition, the Family Research Council, the Family Policy
Alliance, Focus on the Family, Heritage Foundation, Liberty Counsel,
Lifeline Children's Services, the National Religious Broadcasters, the
Religious Freedom Institute, the U.S. Conference of Catholic Bishops,
Samaritan's Purse. The list goes on and on and on of organizations and
entities that read through this bill and said there are major concerns
with the religious liberty portions of this bill.
Now, I am well aware that there are also groups who have put out a
statement and said that they are comfortable with it, that it would
protect them, but other organizations are putting out statements and
saying: Yeah, that is nice for you, but it actually wouldn't protect us
and our members.
There are three major concerns that are in the bill itself under the
issue of religious liberty, and if these three things are not changed
in this bill, it will put the issue of religious liberty at great risk
for millions of Americans who, as President Obama said, hold sincerely
held beliefs that are different.
The first is this: There is a section in the very beginning of the
bill where it
[[Page S6838]]
says any entity that is acting under the color of State law, and then
it puts all the restrictions there on them. That is a broadening,
actually, of what Obergefell actually did. This says any entity,
actually, or individual who is acting under color of state law. What
does that mean? Most people don't live in that legal kind of counsel.
Well, this would be an entity that a State actually hires to fulfill
something for them on behalf of the State.
Let me give you a for-instance on this. A private prison may be one
of those examples, but it could also be adoption agencies, foster care
agencies. It could be an entity that actually does housing for
immigrant and migrant families. It could be a homeless shelter that is
contracted by the State to be able to provide services. It could be any
number of entities. Many of these entities are actually done by
religious organizations that the State actually contracts with them to
be able to do those services. In this new statute, if this passes in 2
hours, there would be a new restriction on those religious entities
that formally held contracts that then would very well be pushed out
from providing those services.
Let me remind you, our Nation functions under not just government
operations but cooperation with families and with faith-based entities
and nonprofit entities around the country. Our safety net, I talk about
often--our first safety net is the families, the second safety net is
nonprofit entities, and the third safety net is government. Many
governments partner with nonprofit--including faith-based--entities to
be able to carry out social services. For those entities, they would
now have a target on them because they are functioning under the color
of State law, and they would have new restrictions. So their choice
would be either not to provide those services or to abandon their
faith.
Now, what are the challenges to them in particular in this? Well, the
first challenge is that they would face litigation from the Attorney
General's Office. The second challenge would be they now face a new
what is called a private right of action. That is what the second area
my amendment specifically deals with. First, it corrects this looping
into lots of new faith-based entities and saying: You are now a State
actor; you are under new restrictions. The second one would be this
private right of action.
The private right of action would now be--anyone who is functioning
``under the color of State law'' would now be a target from an
individual who senses that they have been harmed by the entity. Now, it
is not defined--what ``harmed'' means--in this new statute; it just
says that if someone feels they have been harmed by it, they would now
have the opportunity to be able to sue someone else because of that.
It is not hard for me to be able to say something that is fairly
obvious; that is, if Congress creates a new right to sue people, there
will be a lot more lawsuits, and there will be new tests and
evaluations on that. For anyone who believes that this new right to be
able to sue people won't be used and won't be used quickly by lawyers
and outside groups all around the country, you are kidding yourself.
What will happen in the days ahead, there will be--who knows?--
countless numbers of lawsuits testing every new definition of what,
under the color of State law, what a partnership with government might
look like. Whether that is a vendor who is at an official State event
or whether that is an entity that is providing something like a private
prison or adoption services, they will all face lawsuits and challenges
in the days ahead by entrepreneurial attorneys testing out the limits
of this new law.
We don't know what those limits will be determined by the courts. We
have no idea because it is not defined what it means when they say they
have been harmed and what that definition might mean to different
courts around the country. But we do know this is going to be a major
issue.
My first question is, Why is this even included in this bill at all?
There is already a protection that the State has the opportunity to be
able to make sure they are enforcing the law within their State. This
new private right of action, though, goes above and beyond that and
gives the opportunity for entrepreneurial lawyers to be able to
practice their craft at the detriment of entities all over the country.
What it really does is it silences any individual who may disagree
and discourages any faith-based entity from cooperating with
government; to say, if you want to be able to partner with the State in
the area, you probably aren't welcome here because you don't share the
same beliefs.
The third big issue that we try to correct in this that is a major
problem in this bill is, in the bill, if you actually read from the
text 7(a)--now, 7(a) probably means nothing to many people outside this
room, but the 7(a) section is designed to be able to protect the rights
of individuals or entities not to be able to lose their nonprofit
status or grants or contracts or whatever it may be, but it has very
specific language that is built into this. The specific language is, if
that benefit or right does not arise from a marriage. It is very
carefully written.
When I passed it around to different attorneys to say what does it
mean, it has been fascinating to me to learn different interpretations
of this statute. This particular section 7(a) is written so vague that
it is very difficult to understand what it does mean, but it is very
clear what it doesn't mean.
When it says all these different rights that have been granted based
on does not arise from a marriage, it doesn't include your belief about
marriage. It just says does not rise from a marriage.
Why do I say that? Our amendment actually includes the belief about
marriage included into it to make it very, very clear that if you have
a different belief about marriage, you won't lose your nonprofit
status, you won't lose your opportunity to have grants or contracts,
but that is not included in this statute.
What is included in the statute is just does not arise from a
marriage. That will be a problem in the courts and, unfortunately, that
will have to be litigated until that is actually determined what it
would mean.
What we could do instead is pass my amendment. The amendment makes it
very clear. What I hear from even some of the bill's sponsors is they
say: No, this is what it is intended to mean. I look at it and say:
That is not what it actually says.
So let's have that section say what you actually intended for that to
say to make it clear. Let's take away the private right of action so
that people around the country aren't perpetually worried about a
lawsuit coming at them constantly. Let's take away this under the color
of law section so that there is not a fear of faith-based nonprofits
not partnering with their own government for fear government would step
in and say: Oh, if you are going to partner with us, then you have to
surrender these different beliefs.
Again, I have had individuals who are sponsors of this bill say none
of those things are what we intend. But courts don't rule on intentions
of Congress; they rule on the text that we actually put out.
Those are three major problems in this text. If they are not
corrected and if they are not corrected today, my fear is President
Obama's statement of just 7 years ago that we would not ``recognize
different viewpoints [and] revere our deep commitment to religious
freedom'' would today be ignored.
I encourage the adoption of my amendment, and I encourage everyone in
this body to ask a very simple question of themselves: Is today about
respecting the rights of all or is it about silencing some and
respecting others?
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. PORTMAN. Madam President, I come to the floor today in support of
the Respect for Marriage Act. I want to summarize my remarks, though,
and ask unanimous consent that my full remarks be printed in today's
Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PORTMAN. The Supreme Court declared same-sex marriage as a
constitutional right way back in 2015, and the overwhelming majority of
Americans support that group. According to Gallup, over 70 percent of
Americans believe same-sex marriage should be recognized as valid under
law, including a majority of Republicans.
Despite this strong support, the U.S. Code does not reflect that
consensus in America. Current legislation allows States and the Federal
Government to
[[Page S6839]]
refuse to recognize valid same-sex marriages. While it is true the
Supreme Court has held this law is not enforceable, it still represents
Congress's last word on the subject. The American people rightly expect
their elected representatives to bring our laws in line with their
beliefs. That is part of what this legislation does.
It is time for the Senate to settle the issue. The Respect for
Marriage Act, which passed the House with overwhelming partisanship
support, including the support of 46 Republicans on the House side,
simply allows interracial or same-sex couples who are validly married
under the laws of one State to know that their marriage will be
recognized by the Federal Government and other States if they move.
This is all in accordance with well-established Supreme Court
precedence.
Settling this issue is well within the constitutional authority of us
here in Congress. After all, the full faith and credit clause is part
of our Constitution.
Since the bipartisan passage of this bill by the House of
Representatives earlier this year, in response to concerns over
religious liberty, this already narrow bill has been significantly
amended in the Senate to include robust religious liberty protections.
By working collaboratively on a bipartisan basis with religious liberty
scholars; faith organizations; Senate colleagues, including some I see
on the floor here today; and other stakeholders, we have developed a
substitute amendment that contains important protections for people of
faith. It has five key changes to the underlying bill.
Remember, this is a bill that already passed the House with 46
Republican supporters, but these are religious liberty provisions that
we have added to it.
First, it has an express acknowledgement that decent and honorable
people hold diverse views about the role of gender and marriage and
that such people and their beliefs are due respect. This is an
important statement that has implications that protect religious
liberty.
Second, it explicitly protects all existing religious liberty and
conscience protections under the First Amendment and Federal laws
including the powerful protections provided by the Religious Freedom
Restoration Act.
Third, it guarantees that this bill cannot be used to target or deny
benefits, including tax-exempt status, grants, contracts, educational
funding, licenses, accreditation, certification, and many others
because a person or organization holds a traditional belief about
marriage. This protects everything from the tax status of religious
nonprofits to the accreditation of religious schools, to the contracts
between faith-based adoption providers and the government from being
attacked using this bill.
Fourth, it ensures that nonprofit religious organizations, including
churches, mosques, synagogues, religious schools, and others cannot be
required to provide facilities, goods, or services for marriage
ceremonies or celebrations against their will.
Fifth, it has an explicit prohibition on the recognition of
polygamous marriages.
These religious liberty provisions are significant and they are
meaningful and they have earned the endorsement of important faith
groups. In a joint letter to the Senate, eight different faith-based
organizations, including the Church of Jesus Christ of Latter-day
Saints, also known as the Mormon Church; the Seventh-Day Adventist
Church; the Union of Orthodox Jewish Congregations of America; the
Council for Christian Colleges & Universities; the Center for Public
Justice; the AND Campaign; the Institutional Religious Freedom
Alliance; and the 1st Amendment Partnership--all of them concluded that
our religious liberty amendments ``[protect] the core religious freedom
concerns raised by the bill, including tax exempt status, educational
funding, government grants and contracts, and eligibility for licenses,
certification and accreditation.'' And they said: ``If passed, it would
continue to build on the congressional wisdom represented by the
Religious Freedom Restoration Act of 1993.'' So that is what these
religious groups--that is what they say about it. They helped write the
language.
A group of leading religious liberty scholars and advocates for
religious liberty have analyzed the bill, and they have reached the
same conclusion. These scholars include, by the way, Professor Doug
Laycock, who argued on behalf of faith groups and won two foundational
religious liberty cases before the U.S. Supreme Court. On balance, a
group of these distinguished professors determined that this bill is an
``advance for religious liberty'' because, as they say, the
``protections are important.''
Notwithstanding these important protections and the opinion of
leading experts in the field, the critics of this bill continue to
level accusations about what this bill does that are simply not
accurate.
First, some critics claim this bill provides grounds for the IRS or
other government bodies to revoke the tax-exempt status or other
benefits from religious organizations that adhere to traditional views
on marriage. This couldn't be further from the truth. Section 7(a) of
our amendment actually expressly forbids the outcome that these critics
are warning of. It prohibits the use of the bill to target the tax-
exempt status, certification, accreditation, grant, funding, loan,
license, or any other nonmarital status, right, or benefit of religious
organizations. To quote Professor Laycock's analysis:
Those who claim that the bill would be used as a ground for
denying tax-exempt status to organizations adhering to male-
female marriage, by analogy to Bob Jones, are disregarding
the statutory text.
In addition to the statutory prohibition, this amendment contains a
clear statement from Congress, again, that diverse beliefs about the
role of gender in marriage, including the belief that marriage is
between one man and one woman, come from decent and honorable premises
and are due respect. This congressional statement distinguishes the
belief that marriage should be between a man and a woman from the
belief that interracial marriage is wrong. This distinction is
important, and rather than portraying those who believe in traditional
marriage as bigots, reflects a national policy that respects diverse
beliefs about the role of gender in marriage, while also protecting the
rights of same-sex married couples, and that is the key.
Second, some critics argue that this bill will lead to more
litigation between ``institutions and individuals trying to live
according to their sincerely held religious beliefs.'' This is also
false. The bill only governs the conduct of State actors and contains
no litigation tools that would be used against private religious
entities acting in a private capacity, even the ones that receive the
majority of their funding from the State. To quote, again, from
Professor Laycock's analysis, the Respect for Marriage Act and our
bipartisan substitute amendment ``poses little or no new risk to
religious liberty beyond those that already exist.''
Third, some critics continue to make the bewildering argument that
this bill will lead to legalized and recognized polygamy. Again, this
has no grounding in reality. No State allows bigamy or polygamy, and
this bill does not change this. Moreover, our amendment explicitly says
now:
Nothing in this Act, or any amendment made by this Act,
shall be construed to require or authorize Federal
recognition of marriages between more than 2 individuals.
Finally, some critics argue this bill is deficient because it does
not contain new enforceable rights for private businesses and other
entities beyond the scope of this bill. This bill, as legal scholars
and many faith groups agree, poses no new risks to religious
organizations, while containing significant benefits and protections
for people of faith.
Of course, this bill does not cover or address every lawsuit or
dispute that may arise between LGBTQ and religious interests, but it
does address the disputes that could arise because of this bill.
In conclusion, I urge my colleagues to look carefully at the new
religious liberty provisions. Take a look at it. I hope you will be
able to support the Respect for Marriage Act. The substitute amendment
is a carefully negotiated, well-crafted piece of legislation that
protects people of faith as well as same-sex married couples. A
statement in a recent letter from the Council for Christian Colleges &
Universities accurately states that our amendment
[[Page S6840]]
``sends a strong bipartisan message to Congress, the Administration,
and the public that LGBTQ rights can co-exist with religious freedom
protections, and that the rights of both groups can be advanced in a
way that is prudent and practical.''
I think that is the major point here. They can coexist. That is what
our legislation proves. That is why it deserves the support, in my
view, of our colleagues.
So I urge them to join me in taking this path forward to pass this
bill with the same overwhelming bipartisan support we saw in the House
of Representatives. The American people want us to settle this issue
and millions of American couples who are married, including many in
Ohio, are counting on us to recognize and protect their marriage and
give them the peace of mind that they deserve.
I yield the floor.
Madam President, I come to the floor today in support of the Respect
for Marriage Act. I hope the Senate will pass this important
legislation today.
The Supreme Court declared that same-sex marriage is a constitutional
right in 2015 and the overwhelming majority of Americans support this
view. According to Gallup, over 70 percent of Americans believe that
same-sex marriage should be recognized as valid by the law, including a
majority of Republicans.
Despite this vast support, the U.S. Code does not reflect the
American consensus. Current legislation allows States and the Federal
Government to refuse to recognize valid same-sex marriages. While it is
true that the Supreme Court has held that this law is not enforceable,
it still represents Congress's last word on the subject. The American
people rightly expect their elected representatives to bring our laws
in line with their beliefs.
It is time for the Senate to settle the issue. The Respect for
Marriage Act, which passed the House with overwhelming bipartisan
support, simply allows interracial or same-sex couples who were validly
married under the laws of one State, to know their marriage will be
recognized by the Federal Government and by other States if they move
in accordance with established Supreme Court precedent.
This short, narrow bill has two main effects, both of which are well
within the constitutional authority of Congress.
First, it ensures that marriages legally performed in one State are
recognized as valid in other States, regardless of sex or race. This is
a straightforward application of the full faith and credit clause of
the Constitution.
Under this clause, States are required to recognize things like court
judgments and public records from other States. This bill will simply
clarify that marriage is one of the things that must be recognized
across State lines.
Second, this bill specifies that the Federal Government will
recognize a marriage that is valid in the State where it was performed.
This portion of the bill keeps the Federal Government out of the
business of defining marriage and leaves that decision to the States,
where it properly belongs.
As you can see, this bill is extremely narrow, it is constitutional,
and it does not infringe on State sovereignty. This is a bill that
simply ensures, as a matter of statutory law, that interracial and
same-sex marriages that were legal in the State they were performed
will be recognized if the couple moves to a different State.
In response to concerns over religious liberty, since the bipartisan
passage by the House of Representatives earlier this year, this already
narrow bill has been significantly amended in the Senate to include
robust religious liberty protections. By working collaboratively on a
bipartisan basis with religious liberty scholars, faith organizations,
colleagues, and other stakeholders, we have developed a substitute
amendment that contains important protections for people of faith. This
amendment contains five key changes to the underlying bill.
First, it contains an express acknowledgment that decent and
honorable people hold diverse views about the role of gender in
marriage and that such people and their beliefs are due respect.
Second, it explicitly protects all existing religious liberty and
conscience protections under the First Amendment and Federal laws,
including the powerful protections provided by the Religious Freedom
Restoration Act.
Third, it guarantees that this bill cannot be used to target or deny
benefits--including tax-exempt status, grants, contracts, educational
funding, licenses, accreditation, certification, and many others--
because a person or organization holds a traditional belief about
marriage. This protects everything from the tax status of religious
nonprofits, to the accreditation of religious schools, to the contracts
between faith-based adoption providers and governments from being
attacked using this bill.
Fourth, it ensures that nonprofit religious organizations, including
churches, mosques, synagogues, religious schools, and others cannot be
required to provide facilities, goods, or services for marriage
ceremonies or celebrations against their will.
Fifth, it contains an explicit prohibition on the recognition of
polygamous marriages.
These religious liberty provisions are significant, they are
meaningful, and they have earned the endorsement of important faith
groups that hold to an understanding that marriage is between one man
and one woman. In a joint letter to the Senate, eight different faith-
based organizations--including the Church of Jesus Christ of Latter-day
Saints, otherwise known as the Mormon Church; the Seventh-Day Adventist
Church; the Union of Orthodox Jewish Congregations of America; the
Council for Christian Colleges & Universities; the Center for Public
Justice; the AND Campaign; the Institutional Religious Freedom
Alliance; and the 1st Amendment Partnership--concluded that the
religious liberty amendment ``protects the core religious freedom
concerns raised by the bill, including tax exempt status, educational
funding, government grants and contracts, and eligibility for licenses,
certification, and accreditation'' and that, ``if passed, it would
continue to build on the congressional wisdom represented by the
Religious Freedom Restoration Act of 1993.''
This view is not limited to faith groups. A group of leading
religious liberty scholars have analyzed the bill and reached the same
conclusion. These scholars include Professor Doug Laycock, who argued
and won two foundational religious liberty cases before the Supreme
Court. He argued on behalf of faith groups in the case Church of Lukumi
Babalu Aye, the premier case on unconstitutional religious targeting,
and Hosanna-Tabor, the leading case on the hiring rights of religious
organizations. He won both unanimously.
Professor Laycock was joined by Professor Thomas Berg, Professor Carl
Esbeck, and Professor Robin Fretwell Wilson in his analysis of the
bill. Professor Berg has advocated for religious liberty in briefings
before the Supreme Court, including in Fulton v. City of Philadelphia
to defend the rights of faith-based adoption agencies. Professors
Esbeck and Wilson have themselves authored briefs and influential texts
on religious liberty. On balance, these distinguished professors
determined that this bill is an ``advance for religious liberty''
because the ``protections are important and [] any new risks it creates
are quite limited.''
Notwithstanding these important protections and the opinion of
leading experts on the issues, the critics of this bill continue to
level incorrect accusations about what this bill does. I want to take a
moment to respond to three arguments that opponents have made.
First, some critics claim that this bill provides grounds for the IRS
or other government bodies to revoke the tax-exempt status or other
benefits from religious organizations that adhere to traditional views
on marriage. This couldn't be more wrong. Section 7(a) of the amendment
expressly forbids the outcomes that the critics are warning of. It
prohibits the use of this bill to target the tax-exempt status,
certification, accreditation, grant, funding, loan, license or any
other nonmarital status, right, or benefit of religious organizations.
To quote Professor Laycock's analysis: ``Those who claim that the bill
would be used as a ground for denying tax-exempt status to
organizations adhering to male-female marriage, by analogy to Bob
Jones, are disregarding the statutory text.''
In addition to this statutory prohibition, this amendment contains a
clear
[[Page S6841]]
statement from Congress that diverse beliefs about the role of gender
in marriage--including the belief that marriage is between one man and
one woman--come from decent and honorable premises and are due respect.
This congressional statement distinguishes the belief that marriage
should be between a man and a woman from the belief that interracial
marriage is wrong. This distinction is important, and rather than
portraying those who believe in traditional marriage as bigots,
reflects a national policy that respects diverse beliefs about the role
of gender in marriage, while also protecting the rights of same-sex
married couples.
Second, some critics argue that this bill will lead to more
litigation against ``institutions and individuals trying to live
according to their sincerely held religious beliefs.'' This is also
false. This bill only governs the conduct of State actors and contains
no new litigation tools that could be used against private religious
entities acting in a private capacity, even ones receiving the majority
of their funding from the State. To quote again from Professor
Laycock's analysis, the Respect for Marriage Act and our bipartisan
substitute amendment ``poses little or no new risk to religious liberty
beyond those that already exist.''
Third, some critics continue to make the bewildering argument that
this bill could lead to legalized and recognized polygamy. This has no
grounding in reality. No State allows bigamy or polygamy, and this bill
does nothing to change this. Moreover, our amendment explicitly says
that ``Nothing in this Act, or any amendment made by this Act, shall be
construed to require or authorize Federal recognition of marriages
between more than 2 individuals.'' No court would entertain the
fanciful arguments suggested by critics that a man married to multiple
women is somehow not engaged in polygamous marriage.
Finally, some critics argue that this bill is deficient because it
does not contain new enforceable rights for private business or other
entities that apply beyond the scope of this bill. This is not a fair
criticism. This bill--as legal scholars and many faith groups agree--
poses no new risks to religious organizations, while containing
significant benefits and protections for people of faith. Of course,
this bill does not cover or address every lawsuit or dispute that may
arise between LGBT and religious interests, but it does address the
disputes that could arise because of the bill.
Having addressed these erroneous arguments and criticisms, I also
want to take a moment to address the three amendments that we will vote
on today. None of the amendments that we are voting on solve perceived
problems created by this bill. As I just described, this bill is
narrow, it provides no new risks to religious organizations, and it
contains important protections for people of faith.
Senator Lee's amendment provides new affirmative rights that allow
people to sue the government--including lawsuits for money damages--if
the government discriminates against their beliefs about marriage in
any number of ways. Now, because of the significant protections and
prohibitions that we have added, none of the discrimination
contemplated by Senator Lee could occur because of the Respect for
Marriage Act. In other words, this new right proposed by the Lee
amendment goes far beyond the scope of the bill before us and seeks to
address harms and resolve disputes that are not created by the Respect
for Marriage Act. Although I disagree with Senator Lee that his
amendment solves any potential problem created by the Respect for
Marriage Act, I support the overall goal of providing a defense to
discrimination in other contexts. I, therefore, will vote in favor of
this amendment.
Senator Lankford and Senator Rubio have proposed separate amendments,
both which remove the private right of action from this bill. I do not
support this change. It does not fix any alleged problem created by
this bill or improve it in any way. A private right of action is a
common way for Congress to allow Americans to enforce their statutory
rights. It simply allows someone to go to court and to receive a
judgment if they have been harmed. To illustrate just how common it is,
Senator Lee's amendment that I just discussed--and will support--also
provides a cause of action.
There is no reason to strip the private right of action from this
bill because it is extremely narrow and cannot be used against anyone
acting in a private capacity. It also cannot be used to obtain money
damages. This provision simply allows someone to get a court order
requiring a State actor to recognize their valid marriage. Contrary to
the claims of some critics, it absolutely does not allow lawsuits
against private parties simply because they contract or receive funding
from the government.
The right of action is a necessary enforcement mechanism for this
bill and removing it could leave those who have their rights under this
law violated without a remedy. In other words, it undermines the very
purpose of this bill. I will not support the Lankford or Rubio
amendments for this reason.
In conclusion, I urge my colleagues to look carefully at the new
religious liberty provisions and to support the Respect for Marriage
Act. The substitute amendment is a carefully negotiated, well-crafted
piece of legislation that protects people of faith as well as same-sex
married couples. A statement in a recent letter from the Council for
Christian Colleges and Universities captures my views precisely, and so
I will directly quote from it: This amendment ``sends a strong
bipartisan message to Congress, the Administration, and the public that
LGBTQ rights can co-exist with religious freedom protections, and that
the rights of both groups can be advanced in a way that is prudent and
practical.''
I urge my colleagues to join me in taking this path forward and to
pass this bill with the same overwhelming bipartisan support that we
saw in the House of Representatives. The American people want us to
settle this issue once and for all. Millions of American married
couples, including many in Ohio, are counting on us to recognize and
protect their marriage to give them the peace of mind they deserve. We
shouldn't let them down.
The PRESIDING OFFICER. The Senator from Wyoming.
Ms. LUMMIS. My days since the first cloture vote on the Respect for
Marriage Act, as amended, have involved a painful exercise in accepting
admonishment and fairly brutal self-soul-searching--entirely avoidable,
I might add, had I simply chosen to vote no.
The Bible teaches that marriage is between one man and one woman. I
accept God's Word, including God's Word as to the definition of
marriage. I support my church's adherence to that Biblical
pronouncement. I support Wyoming statute which codifies that
definition. I find solace in people and organizations that share my
beliefs.
I, and many like me, have been vilified and despised by some who
disagree with our beliefs. They do not withhold bitter invective. They
use their own hateful speech to make sure that I and others who believe
as I do know that we are hated and despised by them. Americans on the
other side of this issue can relate to ill treatment as well.
So why have I strayed with such anguish from a path that conforms to
my beliefs, my instruction, my faith, to vote for the Respect for
Marriage Act? The answer to that question lies in our history, in how
we got here as a nation and as a people, and in where we are as a
nation and as a people today.
In the 1600s, colonizers Roger Williams of Rhode Island and William
Penn of Pennsylvania cited Scripture and the Protestant reformers to
defer to God as the judge of conscience.
Williams referred to religious liberty as ``liberty of the soul.''
The charter of the Colony of Rhode Island required religious tolerance,
``that all may . . . freely and fully have and enjoy his and their own
judgments and consciences, in matters of religious concernments.''
George Whitefield's groundbreaking message, without which these
United States never would have come into being, emphasized an
individual's personal relationship with God, where previously the
individual deferred to the church. These became foundational for our
current American approach to the relationship between church and state.
In 2015, the U.S. Supreme Court, in its Obergefell decision,
established a constitutional right to same-sex unions, using the term
``marriage.''
[[Page S6842]]
Tens of thousands of same-sex American couples have married in reliance
on that Supreme Court decision.
The term ``marriage'' now has two meanings: the Biblical and the
secular. The Respect for Marriage Act, by design, references neither
definition. It uses the term ``individuals.'' The act recognizes that
both definitions exist and codifies that a marriage legally entered in
one State will be legally accepted by the others. Further, the act
provides protection from persecution by a government authority toward a
church and its organizations of religious instruction that adhere only
to the Biblical definition.
These are turbulent times for our Nation. Americans address each
other in more crude and cruel terms than ever in my lifetime. It is
jarring and unbecoming of us as human beings. It is highly intolerant,
and, frequently, the most so when expressed by those who advocate for
tolerance. Many of us ask ourselves: Our Nation is so divided. When
will this end, and how will it end?
Just as when our Nation was founded, when the New World tore itself
from the old, people of diverse faiths, beliefs, and backgrounds had to
come to terms with each other, had to tolerate the seemingly
intolerable about each other's views, and had to respect each other's
rights, even before the Constitution enumerated those rights. They had
to tolerate each other in order to survive as a nation. Somehow, most
certainly with divine guidance, they did.
For the sake of our Nation today and its survival, we do well by
taking this step, not embracing or validating each other's devoutly
held views but by the simple act of tolerating them. And that explains
my vote.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, before I begin my remarks, let me
commend the Senator from Wyoming for her very moving and perceptive
comments. I was very glad to be here on the Senate floor to witness her
speech, which I think imparts valuable lessons for all of us to follow.
I rise today in support of the Respect for Marriage Act, which would
ensure that all married couples--including same-sex and interracial
couples--are entitled to the rights and responsibilities of marriage,
regardless of the State in which they live.
Let us remember that we are talking about our family members, our
neighbors, our coworkers, our friends. 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.
With regard to marriage equality, the Respect for Marriage Act
accomplishes two primary goals. First, it would guarantee that a valid
marriage between two individuals in one State is recognized by other
States, regardless of the couple's sex, race, ethnicity, or national
origin.
Second, it would require the Federal Government to recognize valid
marriages between two individuals.
Our bill is also noteworthy, however, for the way that it advances
the cause of religious liberty. Indeed, the substitute amendment that
Senator Baldwin and I introduced with Senators Portman, Sinema, and
Tillis, unambiguously adds significant religious liberty and conscience
protections to the legislation.
These protections were developed in consultation with and have been
endorsed by a wide array of faith-based groups. These include the
Church of Jesus Christ of Latter-day Saints, the Seventh-day Adventist
Church, the National Association of Evangelicals, the Union of Orthodox
Jewish Congregations, the Council for Christian Colleges and
Universities, the AND Campaign, the Institutional Religious Freedom
Alliance, the Center for Public Justice, and the 1st Amendment
Partnership.
Every single one of these entities believes that marriage is between
a man and a woman--every single one of them. They support the religious
liberty provisions in the substitute because these provisions provide
important safeguards against government retaliation, as well as
meaningful recognition of their beliefs embodied in public policy.
Prominent constitutional scholars agree. In a letter led by Professor
Douglas Laycock of the University of Virginia School of Law, four
constitutional scholars who have long advocated for religious liberty
have concluded that the substitute amendment is ``an advance for
religious liberty.'' They call it a ``good and important step for the
liberty of believers to follow their traditional views of marriage.''
Now, let me address some of the unfounded criticisms of our
amendment. It has been suggested by some that the amended Respect for
Marriage Act would somehow demean individuals who have traditional
views on marriage. To the contrary, this legislation would explicitly
recognize in Federal law, for the first time, that such views and the
people who hold them are ``due proper respect.'' It reads:
Diverse beliefs about the role of gender in marriage are
held by reasonable and sincere people based on decent and
honorable religious or philosophical premises. Therefore,
Congress affirms that such people and their diverse beliefs
are due proper respect.
This finding directly rebuts the claim that the bill can be construed
to establish a public policy against people of faith. It does precisely
the opposite.
Opponents point to the example of an institution that lost its tax-
exempt status on the basis of racially discriminatory policies that
were contrary to public policy. That analogy ignores the important
finding in our bill.
As Professor Laycock and his colleagues explained, ``explicit
congressional affirmation that the traditional male-female definition
of marriage is `reasonable' and `honorable' would counter the analogy
to racism and weaken the grounds for relying on Bob Jones''--that is a
Supreme Court case--``to justify rejecting traditionalist believers'
religious-freedom claims.''
Despite this strong policy statement, some have continued to argue
that the Respect for Marriage Act, with the substitute amendment, could
still somehow be used to deprive religious organizations of their tax-
exempt status. We have heard that on the floor today. This is simply
false.
To avoid any ambiguity, the amendment states in section 7(a) that
this bill cannot be used to deny or alter such status, as well as the
``tax treatment, educational funding, or a grant, contract, agreement,
guarantee, loan, scholarship, license, certification, accreditation,
claim, or defense.''
In light of these provisions, the constitutional scholars concluded
that ``those who claim that the bill would be used as a ground for
denying tax-exempt status to organizations adhering to male-female
marriage . . . are disregarding the statutory text.'' The very text of
our bill would prohibit that.
Opponents of this legislation are also mistaken in asserting that it
would provide new grounds on which to sue churches, nonprofit religious
organizations, and people of faith based on their religious beliefs.
This, too, is inaccurate.
The bill simply requires government actors to recognize valid
marriages and provide marriage-based rights to which married couples
are entitled, and it provides a way to pursue claims against those
government actors only in instances where that recognition is denied.
Government actors are already required to recognize same-sex marriages
under the Supreme Court's decision in Obergefell, and the enforcement
provisions in our amendment do not apply to individuals or religious
organizations who are not government actors.
As the 1st Amendment Partnership, an organization dedicated to
protecting religious freedom for Americans of all faiths, wrote in its
analysis, ``if you cannot be sued now under Obergefell, then you still
can't be sued under the'' Respect for Marriage Act.
Of course, providing a way to pursue rights in court when those
rights are unlawfully denied is not unusual. Indeed, other amendments
filed to this legislation contain private causes of action. The
amendment offered by our colleague from Utah, Senator Lee, ironically
would empower individuals to bring lawsuits even on the basis of
``threatened violation[s].''
Notably, not only would the amended Respect for Marriage Act not
diminish or abrogate any religious liberty or
[[Page S6843]]
conscience protection, it also would provide affirmative protections
and litigation defenses for people and organizations of faith that do
not exist under current law.
For instance, the amendment contains an affirmative protection that
prohibits any religious nonprofit organization--including churches,
synagogues, temples, mosques, religious schools, and faith-based social
agencies--from being forced to provide goods, services, or
accommodations in connection with the solemnization or celebration of a
marriage against their beliefs. Moreover, the legislation flatly
prohibits any litigation for such a denial.
The leader of one religious group recently wrote that our
legislation, as amended, ``sends a strong bipartisan message to
Congress, the administration, and the public that LGBTQ rights can co-
exist with religious freedom protections, and that the rights of both
groups can be advanced in a way that is prudent and practical.''
I agree, and that is what our bill does. It advances the rights of
couples--same-sex and interracial couples--who are married to one
another, and it advances religious liberty.
I ask my colleagues to join me in supporting this important and
historic step forward for religious liberty and for ensuring the
dignity and respect for all Americans.
The PRESIDING OFFICER. The majority whip.
Mr. DURBIN. Madam President, I ask unanimous consent to speak for 5
minutes before the rollcall begins.
The PRESIDING OFFICER. Without objection.
Mr. DURBIN. Madam President, I am glad that I am on the floor today
to hear the previous speakers. I think Senator Collins of Maine gave a
thoughtful presentation about the substance of this bill and addressed
many of the worries and criticisms that were raised on the floor
earlier.
I think one thing stuck with me: If there is a protection under
Obergefell, it is the same protection under this bill. It is not an
expansion of rights.
But I also want to thank the Senator from Wyoming. That was an
outstanding statement. It really was, and I join Senator Collins in
commending her for saying it. I am sure her position has not been an
easy one at home, but it reflects some thoughtful consideration on her
part. Most importantly, it reflects her appeal to us in this Chamber
and to the Nation to really seize this opportunity for tolerance. If
there was ever a time when we needed more of that in this Nation, I
can't imagine when it was. We need it now more than ever.
It wasn't but just a few days ago that there was a mass shooting
involving those who were at a gay nightclub, and innocent people were
killed. Now, more than ever, we need to stand up and say there needs to
be tolerance in America, and her statement really touched my heart. I
thank her so much for coming to the floor and delivering it.
I take a look at this and say many times I have been critical of
Supreme Court Justices, particularly Supreme Court Justice Thomas. We
disagree more than we agree. But I, in a way, have to be grateful to
him for bringing us to this moment because it was his statement in the
Hobbs decision about the possibility of raising questions on other
Supreme Court decisions that led us to the introduction of this Respect
for Marriage Act.
I thank the Senators who led in that effort. I want to make sure that
the Record reflects Senator Baldwin, Senator Collins, Senator Portman,
who spoke on the floor earlier, and Senator Sinema and Senator Tillis,
the original cosponsors--bipartisan cosponsors--of the Respect for
Marriage Act.
What we are considering here is very fundamental. I went back to read
Obergefell, and what Justice Kennedy wrote in that majority opinion was
the acknowledgement that there is a constitutional protection based on
due process and equal protection under the laws for same-sex marriage--
fundamental. He said we don't have to wait on the legislature to spell
this out; it already exists. And that, to me, says how powerful this
issue is.
My wife and I are blessed to have so many friends who are in same-sex
marriages and are wonderful people in so many respects. It has really
opened our eyes to the reality of life for so many good Americans who
simply want to have the opportunity under the law to marry the people
they love.
The vast majority of Americans believe in that. I do, and I think
what we are trying to do today is to protect that right as best we can.
Maybe what we are doing is not as expansive as Obergefell, but it is a
genuine good-faith effort.
Senator Lee, in his amendment, claims that it is necessary for his
amendment to protect religious liberty. But he ignores the robust
protections for religious liberty already in the Respect for Marriage
Act.
The bipartisan substitute has been quoted over and over, but it bears
repeating:
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.
Of course, the free exercise of religion must be protected. No one
disputes that, and that is why the bipartisan substitute amendment
makes clear that this bill does not override existing religious freedom
protections.
I commend those religious organizations that have stepped forward,
read this bill carefully, and supported it publicly. It is across the
political spectrum and religious spectrum of America. I think they
understand the lengths that we went--those of us who supported it, as
well as those who wrote it--in putting in provisions to protect the
free exercise of religion.
But we must remember that this critical First Amendment right is a
shield, not a sword. It cannot and must not be wielded to discriminate
against individuals solely based on whom they love. We have seen too
many who have tried to turn this crusade the wrong way. I hope today's
vote on the U.S. Senate floor makes it clear that we are here to
protect civil rights and not enable civil rights violations. We need to
protect LGBTQ families and ensure that same-sex marriages are offered
the same stability and dignity that all marriages are entitled to.
For these reasons, I oppose Senator Lee's amendment and encourage my
colleagues to do the same.
I yield the floor.
Vote on Amendment No. 6482
The PRESIDING OFFICER. Under the previous order, there will now be 2
minutes of debate equally divided prior to a vote in relation to
amendment No. 6482, offered by the Senator from Utah, Mr. Lee.
Mr. DURBIN. Madam President, I ask unanimous consent to yield back
all time.
The PRESIDING OFFICER. Without objection, it is so ordered.
The question is on agreeing to amendment No. 6482.
Mr. DURBIN. Madam President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from Georgia (Mr. Warnock),
is necessarily absent.
Mr. THUNE. The following Senators are necessarily absent: the Senator
from Nebraska (Mr. Sasse) and the Senator from Pennsylvania (Mr.
Toomey).
The result was announced--yeas 48, nays 49, as follows:
[Rollcall Vote No. 359 Leg.]
YEAS--48
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Ernst
Fischer
Graham
Grassley
Hagerty
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Lummis
Manchin
Marshall
McConnell
Moran
Murkowski
Paul
Portman
Risch
Romney
Rounds
Rubio
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Tuberville
Wicker
Young
NAYS--49
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Collins
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Hassan
Heinrich
Hickenlooper
Hirono
Kaine
Kelly
King
Klobuchar
[[Page S6844]]
Leahy
Lujan
Markey
Menendez
Merkley
Murphy
Murray
Ossoff
Padilla
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Van Hollen
Warner
Warren
Whitehouse
Wyden
NOT VOTING--3
Sasse
Toomey
Warnock
The PRESIDING OFFICER (Mr. Murphy). On this vote, the yeas are 48,
the nays are 49. The 60-vote threshold having not been achieved, the
amendment is not agreed to.
The amendment (No. 6482) was rejected.
Amendment No. 6496
The PRESIDING OFFICER. Under the previous order, there is now 2
minutes equally divided prior to a vote in relation to amendment No.
6496, offered by the Senator from Oklahoma, Mr. Lankford.
The Senator from Oklahoma.
Mr. LANKFORD. Mr. President, this amendment is very, very narrowly
tailored. It is in response to the bill. I have talked to several of
the bill's sponsors, and they have told me their intent is to be able
to protect religious liberty, which I appreciate that to be able to
have a balanced perspective in this particular bill because people of
good will on both sides have disagreements in this area.
The problem is, there are three certain areas of the text that do not
actually meet that standard of being a balanced protection. So this
amendment goes into those three areas and corrects the text to make
sure it actually says it is going to protect religious liberty. It is
three areas.
One is a very wide perspective of operating under the color of State
law. That has a very broad net on it. We tried to be able to correct
that one.
The second one deals with striking the private right of action on
this, which will dramatically increase the number of lawsuits. I can
assure you, if Congress passes a law that opens up a new lane for
lawsuits, there will be lots of new lawsuits in that area.
The third area is in 7(a), where it talks about protecting all these
rights if it does arise from a marriage, not from a belief in a
marriage. So we are trying to correct that text to make sure it is not
just the action of marriage but also the belief of marriage.
That is what this amendment does.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Wisconsin.
Ms. BALDWIN. Senator Lankford's amendment would eliminate the only
practical recourse for same-sex and interracial couples to protect
their marriages under the Respect for Marriage Act. It would create an
exemption far beyond current law for partnerships between government
and faith-based organizations, the latter of which continue to enjoy
robust religious liberty and conscience protections that remain intact
under the Respect for Marriage Act.
This amendment would upend a carefully negotiated, bipartisan
compromise that protects the interests of religious organizations and
individuals while affording the dignity of marriage recognition to
same-sex and interracial couples. I urge my colleagues to vote no.
I yield back.
Vote on Amendment No. 6496
The PRESIDING OFFICER. The question occurs on agreeing to amendment
No. 6496.
Mr. LANKFORD. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Georgia (Mr. Warnock) is
necessarily absent.
Mr. THUNE. The following Senators are necessarily absent: the Senator
from Nebraska (Mr. Sasse) and the Senator from Pennsylvania (Mr.
Toomey).
The result was announced--yeas 45, nays 52, as follows:
[Rollcall Vote No. 360 Leg.]
YEAS--45
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Ernst
Fischer
Graham
Grassley
Hagerty
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Lummis
Marshall
McConnell
Moran
Paul
Risch
Romney
Rounds
Rubio
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Tuberville
Wicker
Young
NAYS--52
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Collins
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Hassan
Heinrich
Hickenlooper
Hirono
Kaine
Kelly
King
Klobuchar
Leahy
Lujan
Manchin
Markey
Menendez
Merkley
Murkowski
Murphy
Murray
Ossoff
Padilla
Peters
Portman
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Van Hollen
Warner
Warren
Whitehouse
Wyden
NOT VOTING--3
Sasse
Toomey
Warnock
The amendment (No. 6496) was rejected.
Vote on Amendment No. 6493
The PRESIDING OFFICER (Mr. Markey). Under the previous order, there
is now 2 minutes equally divided prior to a vote in relation to
amendment No. 6493, offered by the Senator from Oklahoma, Mr. Lankford,
for the Senator from Florida, Mr. Rubio.
Mr. RUBIO. Mr. President, I ask unanimous consent to yield back all
time.
The PRESIDING OFFICER. Without objection, it is so ordered.
The question is on agreeing to amendment No. 6493.
Mr. RUBIO. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Georgia (Mr. Warnock) is
necessarily absent.
Mr. THUNE. The following Senators are necessarily absent: the Senator
from Nebraska (Mr. Sasse) and the Senator from Pennsylvania (Mr.
Toomey).
The result was announced--yeas 45, nays 52, as follows:
[Rollcall Vote No. 361 Leg.]
YEAS--45
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Ernst
Fischer
Graham
Grassley
Hagerty
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Lummis
Marshall
McConnell
Moran
Paul
Risch
Romney
Rounds
Rubio
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Tuberville
Wicker
Young
NAYS--52
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Collins
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Hassan
Heinrich
Hickenlooper
Hirono
Kaine
Kelly
King
Klobuchar
Leahy
Lujan
Manchin
Markey
Menendez
Merkley
Murkowski
Murphy
Murray
Ossoff
Padilla
Peters
Portman
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Van Hollen
Warner
Warren
Whitehouse
Wyden
NOT VOTING--3
Sasse
Toomey
Warnock
The amendment (No. 6493) was rejected.
The PRESIDING OFFICER. Under the previous order, amendment Nos. 6488
and 6489 are withdrawn, amendment No. 6487 is agreed to, the cloture
motion with respect to H.R. 8404 is withdrawn, and the bill is
considered read a third time.
The amendments (No. 6488 and 6489) were withdrawn.
The amendment (No. 6487) in the nature of a substitute was agreed to.
The amendment was ordered to be engrossed and the bill to be read a
third time.
The bill was read the third time.
The PRESIDING OFFICER. There will now be 2 minutes of debate equally
divided prior to a vote on passage of H.R. 8404, as amended.
The Senator from Maryland.
Mr. CARDIN. Mr. President, I rise in strong support of H.R. 8404, the
Respect
[[Page S6845]]
for Marriage Act. I am pleased to be a cosponsor of the Senate
companion version of this measure, S. 4556, which has been introduced
by Senator Feinstein.
The House passed this legislation by a bipartisan vote of 267 to 157
in July 2022, and the Senate is now poised to pass this legislation
with a strong bipartisan vote as well.
In 2010, Maryland began to recognize out-of-state same-sex marriages
that were legally performed in other States. And in 2012, Governor
Martin O'Malley signed a law guaranteeing Marylanders the freedom to
marry regardless of their gender, which was later upheld and confirmed
by the voters of Maryland in a statewide referendum.
In 2015, the Supreme Court held in the case of Obergefell v. Hodges
that the Constitution protected the right of same-sex couples to marry
and therefore granting this right nationwide. Let me quote just a few
passages from this historic decision, written by Justice Anthony
Kennedy more than seven years ago: ``Especially against a long history
of disapproval of their relationships, this denial to same-sex couples
of the right to marry works a grave and continuing harm. The imposition
of this disability on gays and lesbians serves to disrespect and
subordinate them. And the Equal Protection Clause, like the Due Process
Clause, prohibits this unjustified infringement of the fundamental
right to marry.''
Justice Kennedy concluded in part that: ``No union is more profound
than marriage, for it embodies the highest ideals of love, fidelity,
devotion, sacrifice, and family. In forming a marital union, two people
become something greater than once they were. As some of the
petitioners in these cases demonstrate, marriage embodies a love that
may endure even past death. It would misunderstand these men and women
to say they disrespect the idea of marriage. Their plea is that they do
respect it, respect it so deeply that they seek to find its fulfillment
for themselves. Their hope is not to be condemned to live in
loneliness, excluded from one of civilization's oldest institutions.
They ask for equal dignity in the eyes of the law. The Constitution
grants them that right.''
So why are we here today, if Obergefell is still the law of the land?
We are here because the Supreme Court of the United States decided to
strip away a woman's fundamental reproductive rights this summer. The
Court overturned its Roe v. Wade decision--and a half century of
associated precedents--in its radical Dobbs v. Jackson Women's Health
Organization decision.
In that decision, Justice Thomas wrote a concurrence which warned
that the Court should ``reconsider, [in future cases], all of this
Court's substantive due process precedents, including Griswold,
Lawrence, and Obergefell.'' These decisions protected the right to
access contraception, the right to have same-sex relations, and the
right to enter into a same-sex marriage, respectively. Do most
Americans really want to turn back the clock on these civil rights, in
terms of being able to responsibly plan the size of their family, make
personal medical and healthcare decision with their doctors, and fall
in love and marry their partner of their choosing, regardless of their
gender? I don't think so.
The dissent in Dobbs correctly pointed out: ``The lone rationale for
what the majority does today is that the right to elect an abortion is
not `deeply rooted in history': Not until Roe, the majority argues, did
people think abortion fell within the Constitution's guarantee of
liberty. The same could be said, though, of most of the rights the
majority claims it is not tampering with.''
The dissent continued: ``The majority could write just as long an
opinion showing, for example, that until the mid-20th century, `there
was no support in American law for a constitutional right to obtain
[contraceptives].' So one of two things must be true. Either the
majority does not really believe in its own reasoning. Or if it does,
all rights that have no history stretching back to the mid-19th century
are insecure. Either the mass of the majority's opinion is hypocrisy,
or additional constitutional rights are under threat. It is one or the
other.''
I am therefore pleased that the Senate came together in its best
traditions to form a bipartisan working group--led by Senators Baldwin
and Collins--to codify the right to be married regardless of your
gender and to rescind Federal laws to the contrary that are still on
the books. I thank Leader Schumer for giving this working group
additional time after the mid-term elections to reach compromise
language that enjoys broad bipartisan support in the Senate, which can
overcome a filibuster.
According to the Human Rights Campaign and a recent Gallup poll, 71
percent of Americans now support marriage equality, compared to only
about 27 percent in 1996, when President Clinton signed the Defense of
Marriage Act--DOMA.
As Senators Baldwin and Collins recently wrote in a compelling op-ed:
``Individuals in same-sex and interracial marriages need, and should
have, the confidence that their marriages are legal. These loving
couples should be guaranteed the same rights and freedoms of every
other marriage . . . This legislation has earned bipartisan support in
Congress because it grants same-sex and interracial couples the
certainty that they will continue to enjoy the same equal treatment
under federal law as all other married couples. . . . [W]e should be
able to agree that same-sex and interracial couples, regardless of
where they live, both need and deserve the assurance that their
marriage will be recognized by the federal government and that they
will continue to enjoy freedoms, rights and responsibilities that come
with all other marriages.''
This legislation has three major components. First, this legislation
would formally repeal the Defense of Marriage Act--DOMA--of 1996.
Section 2 of DOMA purports to allow States to refuse to recognize valid
civil marriages of same-sex couples. Section 3 of the law carved out
all same-sex couples, regardless of their marital status, from
benefitting from any Federal statutes, regulations and rulings
applicable to all other married people. This provision denied same-sex
couples roughly 1,100 Federal benefits and protections.
Second, the legislation establishes that ``place of celebration'' is
the standard of recognition for Federal benefits of a same-sex
marriage, in terms of recognizing a marriage as legal if valid in the
State it was performed. The legislation would also guarantee Federal
marriage benefits if a State rescinded same-sex marriage recognition.
Third, this legislation guarantees that legal marriages are given
full faith and credit by every other State. Article IV, section 1 of
the Constitution provides that ``full faith and credit shall be given
in each state to the public acts, records, and judicial proceedings of
every other state, and the Congress may be general laws prescribe the
manner in which such acts, records, and proceedings shall be proved,
and the effect thereof.'' This section of the legislation additionally
gives the Attorney General enforcement authority to carry out its
provisions and creates a private right of action for any harmed
individual.
The compromise language in the Senate measure clarifies that it will
have no adverse impact on religious liberty and conscience protections.
The revised legislation would explicitly protect all religious liberty
and conscience protections available under the Constitution or Federal
law, including but not limited to the Religious Freedom Restoration
Act. The amendment clarifies that nonprofit religious organizations
will not be required to provide any services, facilities, or goods for
the solemnization or celebration of a marriage.
President Biden is absolutely correct when he stated: ``The right to
marriage confers vital legal protections, dignity, and full
participation in our society. No person should face discrimination
because of who they are or whom they love, and every married couple in
the United States deserves the security of knowing that their marriage
will be defended and respected.''
The Biden administration supports passage of this
legislation, stating that ``H.R. 8404 would repeal the
Defense of Marriage Act, an unconstitutional and
discriminatory law, and would enshrine the right to Federal
recognition of marriage for same-sex and interracial couples.
This legislation would strengthen civil rights, and ensure
that the promise of equality is not denied to families across
the country.''
The Senate should pass this legislation and send it to the
House for its consideration and
[[Page S6846]]
passage in December. I am hopeful that President Biden will
sign this legislation into law before the 117th Congress
adjourns sine die. This would be another major bipartisan
accomplishment for this Congress and mark an important step
forward on our unfinished march for civil rights, as we
strive to form a more perfect union, establish justice, and
guarantee equal rights and equal justice under the law for
all Americans.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Mr. President, shortly, we will have the opportunity to
make history by passing important legislation that will advance two
goals: one, the goal of marriage equality for same-sex and interracial
couples, and second, the goal of strengthening religious liberty and
conscience protections.
I want to thank my colleagues on both sides of the aisle who have
worked so hard on this legislation, and I also want to thank the broad
array of faith-based groups who worked with us on the religious liberty
provisions of our bill.
I want to thank Senator Baldwin, who has been the lead on this bill;
Senator Sinema, who has worked so hard; Senator Portman, who has poured
his heart and soul into it; and Senator Tillis in particular. But I
also want to thank all of the Republicans who have supported this. I
know that it has not been easy, but they have done the right thing.
I urge a vote in favor of the bill.
The PRESIDING OFFICER. The Senator from Wisconsin.
Ms. BALDWIN. Mr. President, I ask unanimous consent that the debate
be extended an additional minute so that I might recognize the leader
after my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. BALDWIN. Mr. President, I want to express, as did my colleague
Senator Collins, that there are many thanks to go around. I thank the
leader. I want to thank the original bill sponsors in the House and
Senate--Congressman Nadler and Senator Feinstein--and the team of
Senators Collins, Portman, Sinema, and Tillis for your unrelenting
commitment that has brought us to this final vote to pass the Respect
for Marriage Act.
I want to thank the advocates who have been fighting for marriage
equality for decades, and I want to recognize the millions of same-sex
and interracial couples who have truly made this moment possible by
living their true selves and changing the hearts and minds of people
around this country.
Many of these same-sex and interracial couples are fearful. They are
worried that the rights, responsibilities, and freedoms they enjoy
through civil marriage could be stripped away. Right now, the Senate
has the opportunity to put those fears to rest and give millions of
people in same-sex and interracial marriages the certainty, dignity,
and respect they need and deserve. By passing this bill, we are showing
that the American Government and people see them and respect them.
I encourage all my colleagues to vote yes on the Respect for Marriage
Act and move our country forward.
I yield to our leader.
The PRESIDING OFFICER. The majority leader.
Mr. SCHUMER. Now, Mr. President, for millions of Americans, today is
a very good day, an important day, a day that has been a long time in
coming. The Senate is passing the Respect for Marriage Act.
Today, the long but inexorable march toward greater equality advances
forward. By passing this bill, the Senate is sending a message that
every American needs to hear: No matter who you are or whom you love,
you, too, deserve dignity and equal treatment under the law.
As the Chamber knows, this is personal to me, and the first people I
will call when this bill passes will be my daughter and her wife.
I want to thank my colleagues, joining the others, for making this
legislation possible--and especially the teams of Senators Baldwin and
Sinema and Collins, Tillis, and Portman. To all of you, I say: Bravo, a
job well done. And to all who make the choice to support this bill,
thank you. None of this was inevitable.
At the urging of my colleagues, we took the calculated risk of
holding off on a vote back in September because they believed, with
more time, we could build enough bipartisan support to push this bill
over the finish line. Today, we have vindication that the wait was well
worth it. I thank my colleagues for their work.
Above all, I want to thank the American people, the vast majority of
whom understand deep in their hearts that the inexorable march toward
equality is what America is all about.
I yield the floor.
I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
Vote on H.R. 8404, as Amended
The bill having been read the third time, the question is, Shall the
bill, as amended, pass?
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Georgia (Mr. Warnock) is
necessarily absent.
Mr. THUNE. The following Senators are necessarily absent: the Senator
from Nebraska (Mr. Sasse) and the Senator from Pennsylvania (Mr.
Toomey).
The result was announced--yeas 61, nays 36, as follows:
[Rollcall Vote No. 362 Leg.]
YEAS--61
Baldwin
Bennet
Blumenthal
Blunt
Booker
Brown
Burr
Cantwell
Capito
Cardin
Carper
Casey
Collins
Coons
Cortez Masto
Duckworth
Durbin
Ernst
Feinstein
Gillibrand
Hassan
Heinrich
Hickenlooper
Hirono
Kaine
Kelly
King
Klobuchar
Leahy
Lujan
Lummis
Manchin
Markey
Menendez
Merkley
Murkowski
Murphy
Murray
Ossoff
Padilla
Peters
Portman
Reed
Romney
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Sullivan
Tester
Tillis
Van Hollen
Warner
Warren
Whitehouse
Wyden
Young
NAYS--36
Barrasso
Blackburn
Boozman
Braun
Cassidy
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Fischer
Graham
Grassley
Hagerty
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Marshall
McConnell
Moran
Paul
Risch
Rounds
Rubio
Scott (FL)
Scott (SC)
Shelby
Thune
Tuberville
Wicker
NOT VOTING--3
Sasse
Toomey
Warnock
The PRESIDING OFFICER (Mr. Peters). The yeas are 61; the nays are 36.
The bill (H.R. 8404), as amended, was passed.
PRESIDING OFFICER. The majority leader.
Mr. SCHUMER. Mr. President, what a great day. What a great day.
Order of Procedure
Mr. President, and now, moving forward, as we always try to do in the
Senate, I ask unanimous consent that the Senate proceed to executive
session and resume consideration of Calendar No. 1133; and that the
cloture motions with respect to Calendar Nos. 1133, 1147, 1148, and
1129 ripen at 11:30 a.m. on Wednesday, November 30; further, that at
11:30 a.m. tomorrow, the Senate vote on motions to invoke cloture on
Executive Calendar Nos. 1133 and 1147; that if cloture is invoked on
the nomination, all postcloture time be considered expired at 2:15 on
Wednesday.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. I yield the floor.
____________________