Many Senate Republicans, rather than confront the substance of new legislation that would provide federal protections for same-sex marriage, are instead arguing that a vote on the bill is unnecessary.
By their reasoning, lawmakers don’t need to consider this legislation, which has already passed the House and is known as the Respect for Marriage Act, because the Supreme Court will treat the Obergefell v. Hodges decision that established this right as settled law.
In his concurrent opinion in the recent Dobbs v Jackson Women’s Health Organization decision, however, Justice Clarence Thomas said that Obergefell was among the decisions he was interested in reconsidering. Previously, multiple justices also said they believed Roe was an established precedent only to vote to overturn it in Dobbs. That’s left Democrats arguing that the marriage bill Congress is weighing is vital to enshrine these protections into federal law in case the Supreme Court reverses the precedent set in Obergefell.
“I think it’s completely unnecessary,” Sen. John Cornyn (R-TX) told Vox. “The Supreme Court has held that the Constitution protects same-sex marriage. It’s under no threat of being reversed or overruled so this is all part of our Democratic colleagues’ attack on the Supreme Court, which has had dangerous consequences.”
Cornyn is among a number of Republicans, including Sens. Marco Rubio (R-FL), Bill Cassidy (R-LA), and Mitt Romney (R-UT) who’ve argued that taking the bill up is superfluous, as the GOP seeks to keep the focus on other issues like inflation. While Cornyn and Rubio oppose the bill, however, Cassidy and Romney are among the Republicans who have yet to say where they stand.
“I think it’s completely made up, this controversy,” Cornyn told Vox, arguing that even if Congress were to pass the bill, the Supreme Court could just overturn it. That’s a risk, however, Congress takes with every piece of legislation it passes. Nancy Marcus, a law professor at California Western, told Vox it would be unlikely the Court could nullify a law like this due to the difficulty of finding a plaintiff with the standing needed to bring a case and the lack of grounds to challenge it. And if the bill were simply redundant, there would be little harm in taking a vote and reaffirming protections on the issue.
Ultimately, the Republican position is about deflection. GOP lawmakers would be taking an unpopular position if they opposed the bill, so they are instead claiming to be opposed to legislative redundancy and overreach. Additionally, this framing helps them avoid what some GOP lawmakers see as a lose-lose scenario: Opposing the measure could prompt backlash from moderate voters, while supporting it could enrage socially conservative members of their base.
This legislation is putting pressure on Senate Republicans
During a House vote last week, the Respect for Marriage Act was opposed by most Republicans, but it garnered backing from roughly a quarter of the conference, which marked an increase in GOP support compared to a vote on the Equality Act in 2021, which would have added protections for LGBTQ people to the Civil Rights Act.
It’s one of several bills the House has recently approved in order to send a message about Democrats’ position on issues including traveling across state lines for abortions, contraception access, and same-sex marriage. All of those bills would be significant if they became law, but the Respect for Marriage Act looks like the most likely to actually do so, given the Republican support it received in the House.
The act is a very short, simple bill: It would repeal the Defense of Marriage Act, which defined marriage as a legal union between a man and a woman, and guarantee recognition of same-sex marriages and interracial marriages under federal law.
Now that it’s in the upper chamber, Senate Majority Leader Chuck Schumer has said he’ll put the bill on the floor once it has 10 Republican votes, the number that’s needed for legislation to overcome a filibuster.
While certain Republicans have questioned the need for this legislation at all, others have avoided putting forth a position thus far. “I got to read it first,” said Sen. Mike Crapo (R-ID). “I don’t have a comment on that just yet,” said Sen. Pat Toomey (R-PA). “No comment,” said Sen. Tom Cotton (R-AR).
So far, four Republicans have said they would likely support the legislation, including Sens. Susan Collins (R-ME), Lisa Murkowski (R-AK), Rob Portman (R-OH), and Thom Tillis (R-NC). Sen. Ron Johnson (R-WI), a fifth Republican, has also signaled that he will probably support the bill, putting out a statement that says he sees “no reason to oppose” the legislation if it hits the floor.
Given the strong support for same-sex marriage from the American people, Republicans would be taking a very unpopular position if they vote against the bill. According to a June report from Gallup, 71 percent of Americans believe same-sex marriages should be recognized by the law, a major uptick from 50 percent roughly 10 years ago. A July Politico/Morning Consult poll also found that 58 percent of people believe Congress should pass a bill that codifies this right into federal law, with 75 percent of Democrats, 62 percent of independents, and 36 percent of Republicans in favor of this policy.
Why Senate Republicans are using distraction tactics
A vote on this issue is forcing Republicans to weigh a decision that could upset some members of the GOP base.
The June Gallup report found the people who are still most opposed to same-sex marriage are weekly churchgoers, some of whom make up a key contingent of socially conservative Republican supporters. And concern about backlash from these voters is likely driving some Republican hesitancy on this bill, the Hill reported last week. The Politico/Morning Consult poll found, for example, that while a majority of Democrats and independents were in favor of federal legislation, 51 percent of Republicans opposed it.
“It is a less difficult issue than they think it is but I understand it’s a difficult issue because there’s a portion of the Republican base that is strongly opposed to same-sex marriage. In my view, same-sex marriage is an accepted part of American life and it’s not going to be changed,” Vin Weber, a Republican strategist, told the Hill.
Sen. Tammy Baldwin (D-WI), the Democrat leading consensus-building efforts in the Senate, told Vox that she expects the legislation to ultimately get the 10 Republican votes it needs.
“We’re just dealing with some of the absentees because of Covid right now, but I think we’re going to be good,” she said. Currently, multiple key votes including Sens. Joe Manchin (D-WV) and Lisa Murkowski (R-AK) are temporarily out because they tested positive for Covid-19 earlier this week. Cornyn, meanwhile, said he wasn’t sure if the Republican votes were there.
The Senate is on a tight timeline. It’s preparing to leave for recess beginning August 5, and Senate leaders have not indicated whether they’ll be able to vote on this legislation before lawmakers skip town.
The vote on the bill, or lack thereof, will ultimately send a clear message about Republicans’ stance on same-sex marriage, even if some refuse to grapple with the policy itself.
“I think the American public, Republican and Democrat, are with us on the issue. Let’s hope folks here will be able to support as well,” Sen. Cory Booker (D-NJ) told Vox.