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Same-sex marriage could get historic protections — if the Senate votes on it

After passing the House, the Respect for Marriage Act now faces an uncertain future.

A person waves a rainbow flag during celebrations for Pride month on June 25, 2022, in Raleigh, North Carolina.
Allison Joyce/AFP/Getty Images

The House easily passed the Respect for Marriage Act — a bill establishing federal protections for same-sex marriage — on Tuesday, with 47 Republicans voting in favor of the bill, a bipartisan accomplishment that would have been unimaginable just a few years ago.

The vote passed so smoothly and quickly that it seemed to catch senators, including ones in Democratic leadership, off-guard. But they now face the task of keeping up the momentum and holding a vote of their own, even if doing so throws a wrench in their already packed legislative calendar.

The bill would repeal the 1996 Defense of Marriage Act, which previously defined marriage as a legal union between a man and a woman, and it would guarantee recognition of same-sex marriages and interracial marriages under federal law. House Democrats emphasized that this vote was important to enshrine federal protections in the wake of the Supreme Court’s decision to overturn Roe v. Wade and Justice Clarence Thomas’s statement that other rights, like same-sex marriage, could be considered next.

It’s not yet clear what the fate of the legislation will be in the upper chamber, however.

On Wednesday, Senate Majority Leader Chuck Schumer announced that he’d be interested in holding a vote and was working to build sufficient Republican backing. Given Democrats’ 50-50 majority in the Senate, the party would need at least 10 GOP votes to pass the legislation.

“I want to bring this bill to the floor, and we’re working to get the necessary Senate Republican support to ensure it would pass,” Schumer said in a floor speech. Senate Majority Whip Dick Durbin (D-IL), the second-ranking Democrat, previously said that the limited time left before Congress’s August recess could make it difficult to add this vote to lawmakers’ long to-do list for now.

Senate Democrats’ slowness to confirm the timing of a vote comes in stark contrast to the House approach of trying to hold multiple votes to put Republicans on the record on this subject and several other civil rights policies.

A vote would be a prime opportunity to address an issue Democrats have been sounding the alarm about in the wake of the Supreme Court’s decision to revoke Americans’ right to access abortions. It would also be a way to highlight Republican opposition to same-sex marriage — in contrast to the 71 percent of Americans who support legal same-sex marriage, according to Gallup — if it failed to pass.

Should timing present a problem, lawmakers could also either shorten or cancel a recess in order to finish outstanding legislative business.

The key looming question, as Schumer noted, is if 10 Republican senators will ultimately vote in favor of the bill. The House vote indicated that support for the issue among some Republicans had shifted significantly in the past decade: While the vast majority of the Republican caucus (157 out of 204 GOP members who voted) were against the measure, the support it did get indicates it has decent odds of Senate passage.

So far, the Senate version of the legislation, however, only has one Republican co-sponsor: Sen. Susan Collins (R-ME).

Senate Republicans’ stances aren’t yet known

In an Axios survey of 20 Senate Republicans, which included members perceived as “moderates or bipartisan dealmakers,” last week, none took a clear stance on the issue. Senate Minority Leader Mitch McConnell, when asked about the legislation Tuesday, also demurred, noting that he’d “delay announcing anything on that issue until we see what the majority leader wants to put on the floor.”

There are a handful of moderate senators who are expected to be in play including Sens. Collins, Lisa Murkowski (R-AK), and Rob Portman (R-OH). Sen. Thom Tillis (R-NC) also told CNN on Wednesday that he would “probably” support the legislation. And Senate Minority Whip John Thune (R-SD) told reporters that the bipartisan support in the Senate could mirror the backing for the bill in the House.

Other Republicans, meanwhile, have said they don’t think the Supreme Court will undo its precedent, and that legislation on the subject is unnecessary. Some have also gone further, emphasizing that they believe the right to decide the issue should be returned to the states.

Sen. Ted Cruz (R-TX), for example, has been vocal about his view that the Supreme Court’s 2015 decision in Obergefell v. Hodges was wrongly decided, and should be overturned. “I think that decision was clearly wrong when it was decided. It was the court overreaching,” he said in a July episode of his podcast.

Others like Sens. Marco Rubio (R-FL) and Lindsey Graham (R-SC) have cast doubt on the need for the upper chamber to hold this vote, emphasizing that the courts aren’t likely to go after this right. “It’s obviously settled law right now. This is a pure messaging bill by a party that has failed on substantive issues — be it inflation, crime or the [southern] border and now are looking for cultural issues in order to somehow do better in November,” Sen. Bill Cassidy (R-LA) told ABC News.

This legislation would codify the right to same-sex marriage

Passage of this legislation would be historic.

It would codify the right to same-sex marriage under federal law and would prevent states from trying to nullify same-sex marriages and interracial marriages if they were valid in the places where they were performed. Ultimately, it’s both a preemptive move that House Democrats are taking if the Supreme Court were to overturn the precedent set by Obergefell v. Hodges and a way for them to get Republicans to take a stand on the issue.

Lawmakers have stressed that Thomas’s opinion in Dobbs warranted federal action. “If Justice Thomas’s concurrence teaches anything it’s that we cannot let your guard down or the rights and freedoms that we have come to cherish will vanish into a cloud of radical ideology and dubious legal reasoning,” Rep. Jerry Nadler (D-NY) said in a statement.

As the midterm elections approach, Democrats are also trying to contrast themselves with Republicans on a number of other popular social issues including abortion rights and contraception access. And they’ve been taking hits from their own base for not doing enough to protect those rights while they control Congress and the presidency. The Tuesday vote gave them an opportunity to use that power and highlight the differences with most of the GOP.