The Washington PostDemocracy Dies in Darkness

Opinion Why did Democrats postpone the same-sex marriage vote?

Sen. Tammy Baldwin is trying to build support for a bill to guarantee marriage equality. (Jabin Botsford/The Washington Post)

After a great deal of cajoling and negotiating, Senate Democrats have delayed a vote on the Respect for Marriage Act until after the midterm elections. One way to look at this is that they have preserved the possibility that the bill could overcome a Republican filibuster and become law in the lame-duck session. Another is that they just let Republicans off the hook.

The bill’s purpose is to codify the Supreme Court’s 2015 ruling in Obergefell v. Hodges, which guaranteed the right of same-sex couples to marry anywhere in the country. When the court overturned Roe v. Wade, the logic it used made clear that Obergefell could be next. In a concurrence in the abortion case, Justice Clarence Thomas suggested that it, too, should be nullified.

So the bill would make clear that same-sex couples have the right to marry even if the Supreme Court reverses itself on what the Constitution requires. It would require that every state legally recognize marriages that occur in any other state: Conservative states would have to respect same-sex marriages that took place in liberal states. It passed the House in July, with 47 Republicans voting for it. But Democrats need 10 Republican senators to defeat a filibuster in the upper chamber.

At first, the bill’s main purpose was seemingly to put Republicans in an embarrassing position, forcing them on record with an unpopular stance just before the elections. And their position is unpopular: Support for marriage equality is now over 70 percent in polls, but the adamant opposition of the GOP, and the vast majority of its elected officials, has not changed.

Instead, they’ve chosen to stop talking about it. You don’t see Republicans in close races airing ads about how they want to roll back marriage for same-sex couples.

But it turned out that although the Respect for Marriage Act may have had political utility as a weapon against Republicans, its sponsors — especially Sen. Tammy Baldwin (D-Wis.), the first openly gay U.S. senator — are serious about passing it for its own sake, as protection against an activist conservative Supreme Court.

The trouble is that only three Republicans have gone on record in support: Susan Collins of Maine, Thom Tillis of North Carolina and Rob Portman of Ohio. So who are the seven Republicans who won’t vote for it now, but who will vote for it after the midterm elections?

One obvious one is Lisa Murkowski of Alaska, who says she supports marriage equality but has not said whether she’ll support this bill. A few others, when asked about marriage equality, express some kind of live-and-let-live view, but that’s very different from voting on a high-profile bill.

And if we expect their votes to change between now and after the elections, that could mean only they feel it is too politically risky for them now but won’t feel that way in the lame-duck session.

That in turn would mean that they are personally in favor of codifying marriage equality but just don’t want to risk a right-wing backlash until after the elections. The question is: Why believe that enough Republicans feel that way and would indeed vote for the bill later?

According to a source familiar with Baldwin’s thinking, who spoke on the condition of anonymity, the choice broke down to this: Keeping alive the chance of getting the bill passed versus having no chance at passing it but extracting a political price right now from Republicans for that failure.

In this calculus, Republicans would definitely not vote for the bill after the elections if forced to beforehand. But there’s at least a chance that they’ll vote for it after the elections if they’re not jammed now.

And so, the source said, Baldwin doesn’t want to squander that chance of getting it done in exchange for putting Republicans on record on it before the elections. Even if that latter course might be desirable in some ways — after all, it might help Democrats keep the Senate, and that’s a big deal! — it’s still not worth trading away the chance of passage later.

Which means that, if Baldwin proves right and it does pass after the elections, this will all look very shrewd in retrospect. But if Republicans are blowing smoke — if they have no intention of voting for it after the elections and are just scamming to avoid a tough vote now — then there will be hell to pay among Democrats for failing to get them on record when they could have.

Knowing what we know about Republicans, that pessimistic scenario seems quite plausible. And it’s still hard to see where those extra Republican votes are going to come from.