The Senate sometime in September is set to take up a proposal to codify federal protections for same-sex marriage as the bill’s supporters work to garner the 10 necessary Republican votes it’ll need to pass.
The Respect for Marriage Act could come up for consideration shortly after the Senate and House return from their summer recesses, just after Labor Day, Senate Majority Leader Chuck Schumer (D-NY) told reporters. But it remains unclear whether the legislation will win enough Republican votes to overcome the Senate’s 60-vote filibuster threshold needed to begin debate on the bill.
The Respect for Marriage Act was passed by the House earlier this year in a bipartisan vote that included 47 House Republicans. But the proposal faces more difficult odds in the Senate, where 10 Republicans would need to join all 50 Democrats in support of the bill for it to pass.
Schumer has recently brought up for a vote several doomed-to-fail issue bills, including one on abortion and another on voting rights. So his indication that the Senate will vote on the same-sex marriage bill doesn’t necessarily mean it will pass.
The Senate version of the bill, introduced by Sens. Tammy Baldwin (D-WI), Dianne Feinstein (D-CA), and Susan Collins (R-ME), does have some bipartisan support. In addition to Collins, Republican Sens. Rob Portman (OH), Thom Tillis (NC), and Ron Johnson (WI) have publicly indicated their intent to vote for the bill. Sen. Lisa Murkowski (R-AK) told multiple media outlets that she wants to review the bill but noted she supports same-sex marriage broadly.
Even with the support of those five Republicans, Democrats would need another five to reach the filibuster threshold.
Senate Minority Leader Mitch McConnell (R-KY) has indicated he intends to avoid taking a position on the bill until a vote is announced and a final version available. Should McConnell choose to support the bill, that would likely sway additional GOP votes in the bill’s favor, while his opposition would likely give those on the fence political cover to oppose the bill.
A Gallup poll earlier this year found that a majority of the public, 71%, supports legal same-sex marriage. But embracing the issue could place some Republicans at odds with socially conservative factions of their base.
As Republicans seek to cast the midterm elections as a referendum on President Joe Biden and rising inflation, Democrats have argued Republicans are emboldened by the Supreme Court’s June ruling in Dobbs v. Jackson Women’s Health Organization that reversed its previous landmark Roe v. Wade decision. Democrats have pointed to a concurring opinion by Justice Clarence Thomas that appeared to invite legal challenges to other prior rulings by the high court, such as rulings pertaining to contraception and same-sex marriage, arguing that Republicans will also seek to overturn those rulings.
Sen. Jeff Merkley (D-OR) made that argument in a video posted to social media in mid-August.
“Politicians shouldn’t have any role in dictating who someone loves or how they identify,” Merkley said. “And they certainly should never be involved in determining who someone marries. And yet we have an extremist majority on the Supreme Court that has laid down a philosophy that attacks the principle of marriage equality. And that’s why we need to pass the Respect for Marriage Act, that protects marriage equality for same-sex couples and interracial couples. There is no time to waste. Keep the politicians out of marriage. Love is love. Let’s get this passed.
But Senate Republicans have dismissed that argument, saying those rulings are not in question as Roe was.
Sen. Marco Rubio (R-FL), who is running for reelection in November, has characterized the legality of same-sex marriage as settled and therefore a “nonissue.”
In remarks to reporters last month, Rubio said “the chances of gay marriage being outlawed are zero,” quipping that “the chances Nancy Pelosi will endorse me in my Senate reelection are higher than the chances of that going anywhere.”
When asked about Rubio’s reasons for opposing the bill, a spokesperson for Rubio told the Washington Examiner that the senator’s position — that marriage is a state, not federal, issue — has been consistent during his time in office, pointing to a 2015 Meet the Press interview during which Rubio said, “If you want to change the definition of marriage, then you need to go to state legislatures and get them to change it. Because states have always defined marriage.”
“And that’s why some people get married in Las Vegas by an Elvis impersonator,” Rubio said at the time. “And in Florida, you have to wait a couple days when you get your permit. Every state has different marriage laws. … I don’t think the current Constitution gives the federal government the power to regulate marriage. That belongs at the state and local level.”
If the Respect for Marriage Act were enacted, it would repeal the Defense of Marriage Act, a 1996 law defining marriage, for federal purposes, as a union between one man and one woman. That law, also known as DOMA, was struck down by the Supreme Court in Obergefell v. Hodges, the landmark 2015 ruling that established same-sex marriage as a constitutional right. But DOMA has never been repealed. The Respect for Marriage Act would require any federal definition of marriage to include same-sex marriages and would require states to recognize those marriages.
The bill would also codify the right to interracial marriage, which the Supreme Court recognized in its 1967 ruling in Loving v. Virginia.
