The Respect for Marriage Act, a bill that would enshrine the right to same-sex and interracial marriage in federal law, is only four short pages long. Yet in the week since the House passed the measure on a bipartisan vote and Democratic leaders indicated they planned to put it on the Senate floor, few Republican senators have found the time to read it — or so they said Tuesday.
“Haven’t read it,” said Sen. John Neely Kennedy (R-La.).
“We’re still looking at it,” said Sen. Rand Paul (R-Ky.).
“I’m not going to comment on it in terms of how I’m going to vote until I see the bill — if it does get a vote,” said Sen. Mike Braun (R-Ind.).
The reality is, senators have little trouble understanding what the bill does: It repeals the 1996 Defense of Marriage Act and requires states to extend “full faith and credit” to any marriage between two people, regardless of the “sex, race, ethnicity, or national origin of those individuals” — mirroring the action that the Supreme Court took in the 2015 Obergefell v. Hodges decision that legalized same-sex marriages nationally.
The complicated part is the politics: Despite the fact that 7 in 10 Americans now approve of same-sex marriage, the issue remains a fraught one for Republicans. They still count the religious right as a key part of their electoral coalition, and they remain wary of being baited by Democrats into highlighting what some of them believe is a purely speculative threat to same-sex marriage rights nationally when Republicans would much rather be talking about rising inflation and a softening economy.
“Most of our members are going to say: Why are we having this vote right now when nobody’s talking about it?” said Sen. John Thune (R-S.D.), the No. 2 Senate GOP leader. “It seems like the Democrats are using it as a distraction.”
But in the eyes of Democrats, writing same-sex marriage into federal law became much more than a political stunt with last month’s Supreme Court decision overturning the constitutional right to abortion that had stood since the Roe v. Wade decision 49 years ago. Like the rights to interracial and same-sex marriage, the federal abortion right had been grounded in the constitutional theory of substantive due process that recognizes “unenumerated” rights such as the right to privacy.
While the controlling opinion of the court last month held that the abortion ruling should not “cast doubt on precedents that do not concern abortion,” a concurring opinion by Justice Clarence Thomas did precisely that — calling on the high court to “reconsider all of this Court’s substantive due process precedents,” including Obergefell and Griswold v. Connecticut, which protected access to contraception, and Lawrence v. Texas, which invalidated state sodomy laws.
“We’re in the post-Roe world, where marriage equality, contraceptive freedoms — it’s all on the table as far as the Supreme Court’s concerned,” said Sen. Richard Blumenthal (D-Conn.). “And this issue in particular is on the right-wing majority’s hit list. So as inconceivable as overturning Roe was just a year ago, this one has to be regarded as in jeopardy.”
A handful of Senate Republicans have already indicated that they are on board with the effort, including Susan Collins (Maine), Lisa Murkowski (Alaska), Rob Portman (Ohio) and Thom Tillis (N.C.). A fifth Republican, Sen. Ron Johnson (Wis.), said last week that he had “no reason to oppose” the measure, while also accusing Democrats of “creating a state of fear over an issue in order to further divide Americans for their political benefit.”
That is five more Republicans than supported Democrats’ efforts earlier this year to codify Roe ahead of the Supreme Court’s ruling. But Democrats will need at least 10 to join them to vault a filibuster.
Dozens of Republicans are expected to oppose the measure if it is brought up for a vote. Among those who said Tuesday that they would have no qualms in voting “no” was Sen. John Boozman (R-Ark.), who said in a statement that the bill constituted “an attempt by Democrats to score political points by manufacturing hysteria and panic, in addition to escalating their ongoing attacks against the Court.”
But many are simply not taking a position. Senate Minority Leader Mitch McConnell (R-Ky.) is leading the wait-and-see parade, telling reporters Tuesday that he would continue to keep his powder dry until Senate Majority Leader Charles E. Schumer (D-N.Y.) schedules a vote. Asked about his position on the bill, McConnell said, “I’m not going to make an observation about that until the issue is actually brought up in the Senate.”
That posture has been comfortable for many Republicans this week: Sen. Joni Ernst (R-Iowa), a member of McConnell’s leadership team, said she was “hearing from both sides on the issue” and remained undecided. “I’ll see if it comes up, and then I’ll make a decision,” said Sen. Richard Burr (R-N.C.), while Sen. Patrick J. Toomey (R-Pa.) declined to state his position, noting, “I don’t know whether we’re voting on that or not.”
Behind the scenes, those senators are being lobbied by some of their colleagues, including Collins, Portman and Tillis, as well as the two Democratic senators who are openly members of the LGBTQ community, Tammy Baldwin (Wis.) and Kyrsten Sinema (Ariz.).
“We’re just trying to work through it,” said Tillis. “At the end of the day, the members have to make their own decisions, but in my opinion, it’s very much unlike the bill that Sen. Schumer put on the floor for codifying Roe v. Wade. … This is a sincere codification of current law.”
Republicans, meanwhile, are under pressure from elements of their political coalition who are urging them to stand fast against the bill. A letter sent Tuesday to McConnell, signed by leaders of the Heritage Foundation, the Family Research Council, Alliance Defending Freedom and dozens of other social conservative organizations and institutions, said the measure would “endanger people of faith” and have the effect of “silencing those with the long-held conviction that marriage between one man and one woman is essential to human flourishing.”
“It has little to do with protecting rights; its text betrays an intent to stigmatize and take rights away — especially those belonging to people of faith,” said the letter, which was first reported by Politico.
The religious right’s biggest ally in its quest to stop the bill from advancing might be an impending legislative pileup in the Senate, as well as a spate of health-related absences that could keep the Senate from mustering the 60 votes necessary to beat a filibuster. Sen. Patrick J. Leahy (D-Vt.) is recovering from hip-replacement surgery, while Murkowski and Sen. Joe Manchin III (D-W.Va.) have tested positive for the coronavirus in recent days.
“We are working real hard to get 10 Republican senators,” Schumer told reporters Tuesday. “Between that and the illnesses, we’re not there yet.” He did not list the same-sex marriage bill among his top priorities for action before the Senate begins its summer recess next week, instead listing bills to boost research and development investment, lower prescription drug prices and improve veterans’ health care.
Baldwin said Tuesday that the bill is “gaining more support each day” but that the absences are a concern.
“We’ll do it when we have the votes and the time,” she said, adding, “I would not be surprised if we have significantly more in the end [than those who are] making a public commitment at this point.”
But Democrats’ insistence on waiting for sufficient GOP support to hold a vote amid Republicans’ reticence to publicly embrace the legislation has created a Catch-22 for the time being. “My assumption is it certainly doesn’t happen until they’re convinced they’ve got 10 Republicans,” said Thune, who has opposed same-sex marriage in the past but has not taken a position on the Respect for Marriage Act.
“I think a number of them are hoping it will just go away,” Blumenthal said, recounting his own conversations with Republicans. “But when push comes to shove … I think if you put it on the floor today, it would pass. What I’m hearing is, ‘You know, our base is tough on this issue, but how can we possibly defy history?’ ”