Democrats court Republicans on same-sex marriage bill with religious liberty protections

Democrats attempting to codify federal protections for same-sex marriage are negotiating religious liberty provisions in a bid to win the Republican votes needed to pass the legislation.

Democrats must secure the support of 10 GOP senators to clear the upper chamber’s filibuster rule and begin debate on the Respect for Marriage Act, which the House passed with 47 Republican votes in July.

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Sen. Rob Portman (OH), one of the bill’s Republican sponsors, told Fox News on Wednesday that he thinks the legislation will have enough votes to clear the chamber. But only a handful of Republicans have publicly offered their support.

Senate Majority Leader Chuck Schumer (D-NY) told reporters this week that he plans to hold a floor vote on the bill in the coming weeks, with or without Republican backing.

Republican Susan Collins (ME) and Democrat Tammy Baldwin (WI), the other two senators co-sponsoring the measure, are currently working on an amendment to clarify the legislative text to ensure it would not infringe on First Amendment rights to religious freedom.

“We are listening carefully to the concerns that have been raised by some of our colleagues,” Collins told Politico this week. “And we’re looking at an amendment that would strengthen the language in the bill to make crystal clear that it does not in any way infringe upon religious liberty. And it also would correct a drafting error.”

The pair made a similar point in a joint op-ed for the Washington Post this week, writing, “We recognize that some might need more clarity on this point, and that is why we have worked together with our Senate colleagues to develop clarifying language to the legislation that makes it clear what the Respect for Marriage Act would not do — it will not take away or alter any religious liberty or conscience protections.”

In addition to Collins and Portman, Republican Sen. Thom Tillis (NC) has indicated he would back the legislation, and Sen. Lisa Murkowski (R-AK), who supports same-sex marriage more broadly, is also seen as a likely “yes” vote. Sen. Ron Johnson (R-WI) initially indicated support for the bill but walked back his comments, according to a report this week, expressing the need for religious liberty protections. That leaves Democrats needing possibly six votes to pass the bill.

Most of the Republicans who have made their opposition to the bill public, including Sens. Marco Rubio (FL) and Lindsey Graham (SC), have argued there is no serious effort underway to strip existing protections for same-sex couples and that the bill is merely Democrats’ attempt to appeal to their base weeks before an election.

But others, including Portman and Sen. Ted Cruz (R-TX), have cited religious liberty concerns among their reasons for opposing the bill.

Nathan Berkeley, communications director for the Religious Freedom Institute, told the Washington Examiner that if legal challenges leading up to and following the majority opinion in Obergefell v. Hodges are any indication, codifying same-sex marriage into federal law “would bring with it enormous challenges to religious freedom.”

“In legislation codifying same-sex marriage, there might be ways to mitigate, but not to eliminate, such challenges,” Berkeley said.

Sen. Mike Lee (R-UT) is reportedly drafting his own amendment to address religious liberty concerns. His office did not respond to a request for comment on what the amendment would include.

Strengthening the religious liberty provisions may be something of an olive branch to Republicans who would otherwise not support the bill.

Sen. Mitt Romney (R-UT), who has not yet taken a position on the legislation but is seen as one of the Republicans more likely to support it, told the Washington Post of the religious liberty protections, “I’m continuing to work on that, and that’s the area of my focus.”

Berkeley said one such area of concern is that the bill may go beyond what the high court ruled in Obergefell and encourage “harmful litigation against religious groups” — extending to people, organizations, and businesses — “merely for operating according to their sincerely held religious belief that marriage is between one man and one woman.”

Democrats have argued the bill is necessary in the wake of a June Supreme Court decision reversing Roe v. Wade, citing a concurring opinion issued by Justice Clarence Thomas that appeared to invite legal challenges to other rulings by the high court, such as those related to contraception and same-sex marriage.

Schumer made that argument in his press conference on Wednesday, telling reporters, “Let’s remember why a vote on respect for marriage is necessary.”

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“They made it abundantly clear they’re not satisfied with repealing Roe,” he said.