ABOVE: Sen. Tammy Baldwin. Washington Blade photo by Michael Key.
Senate insiders are bullish on the prospect of a measure seeking to codify same-sex marriage after an unexpected bipartisan vote for the measure in the U.S. House as some predict lawmakers could find the 60 votes needed to end a filibuster and vote to send it to President Biden’s desk, although concerns remain about limited time on the congressional calendar.
With support for same-sex marriage at a record high — 7-in-10 Americans support gay nuptials — insiders told the Washington Blade the Senate could approve the Respect for Marriage Act with the 10 Republicans needed to end a filibuster — or even more. The major obstacles for the measure are finding a time period to put the bill up for a vote in the Senate, waiting for senators out with COVID to return to work, and rounding up enough Republican support.
One LGBTQ lobbyist, who agreed to speak on condition of anonymity, said “we’re in a good place” with votes on the measure, although whether or not 60 votes are present is hard to know until Senate Democratic leadership ultimately brings up the bill for a vote.
“I think this is one of those things where I think we are absolutely close, and I think we should move forward when we can, which I hoped would be really soon, ideally, to try to have a vote,” the lobbyist said.
Lawmakers approved the Respect for Marriage Act by a 267-157 vote, with 47 Republicans joining the unanimous Democratic caucus in supporting the legislation. One-fourth of the House Republican caucus voted for the measure, dubbed the Respect for Marriage Act. The measure would need a smaller share of Republicans in the Senate, one-fourth, to obtain the 60 votes necessary to end a filibuster in the chamber.
Sen. Tammy Baldwin (D-Wis.), the first out lesbian senator, was the subject of a recent profile in Politico and was quoted as saying she has spoken to at least 10 Republican senators. One LGBTQ lobbyist said Sen. Dianne Feinstein (D-Wis.), the sponsor of the bill in the Senate, is active in the lobbying process through notes to her staff. Sen. Susan Collins (R-Maine), an original co-sponsor of the measure, and Sen. Rob Portman (R-Ohio), who has a gay son and was an early Republican supporter of same-sex marriage, are taking an active role in lobbying the Republican caucus, insiders said.
In addition to Collins and Portman, a handful of Republicans have declared support for the Respect for Marriage Act, including Sen. Thom Tillis (R-N.C), who once voted for same-sex partner benefits; and Sen. Lisa Murkowski (R-Alaska), who has supported LGBTQ rights measures in the past. A fifth and unlikely Republican, Sen. Ron Johnson (R-Wis.), has said he sees “no reason to oppose the measure.”
Other Republicans have been non-committal, such as Sen. Mitt Romney (R-Utah), who has a reputation as a moderate, but years ago was once a champion of a proposed constitutional amendment that would have banned same-sex marriage nationwide, or announced they would oppose the measure, such as Sen. Marco Rubio (R-Fla.), who pointedly called the measure a “stupid waste of time” and Sen. Lindsey Graham (R-S.C.). One Republican, Sen. Tommy Tuberville (R-Ala.), surprisingly told reporters he’s OK with same-sex marriage, but hasn’t indicated specifically which way he’ll come down on the bill.
Romney, despite his history of opposition to same-sex marriage, may be in play, one LGBTQ lobbyist said, given his new image as a moderate and getting breathing space from Utah lawmakers in the House who were among the 47 Republicans to vote for the Respect for Marriage Act. Other potential votes identified are Sens. Joni Ernst (R-Iowa), Pat Toomey (R-Pa.), Richard Burr (R-N.C.) and Shelly Moore Capito (R-W.Va.).
Complicating matters is that a number of senators are out sick. Murkowski and Sen. Joe Manchin (D-W.Va.) have been out after contracting COVID, while Sen. Patrick Leahy (D-Vt.), the longest-serving member of the Senate, has been out with a fractured hip he suffered from a fall at his house in McLean, Va. One Republican insider said there is an effort to schedule a vote in the Senate, but that was scrapped with the number of senators absent, although another LGBTQ insider pushed back on that and said a vote may still happen this week.
Senate Majority Leader Charles Schumer (D-N.Y.), following the bipartisan vote for the Respect for Marriage Act in the House, expressed interest on the Senate floor in bringing the measure up for a vote, although he hasn’t specified any time as lawmakers are preparing to exit for the August recess. A Schumer spokesperson said he didn’t have a timing update and referred the Blade to the senator’s public remarks on the measure.
Time, however, is running out. Not only is the calendar limited before Congress adjourns for August recess, but one LGBTQ lobbyist said time is not on the side of Respect for Marriage Act as social conservatives are beginning to mount aggressive campaigns against the measure.
Schumer, asked about the Respect for Marriage Act during a weekly reporter stakeout Tuesday, said “yes” in response to a question on whether the bill remains a priority before Congress adjourns for August recess.
“OK, the bottom line is that we care very much about the Equality Act, the Marriage Equality Act,” Schumer added. “We are trying, working real hard to get 10 Republican senators. Between that and the illnesses, we’re not there yet.”
Dangerous amendments also remain a possibility. Unlike the House, which proceeded with the Respect for Marriage Act under a closed rule, the same option isn’t available in the Senate, where proposed amendments are determined by agreement among caucus leaders. One LGBTQ lobbyist, however, downplayed the threat of amendments, saying there may be some that would be acceptable if they would win the vote of additional supporters while objectionable changes could be voted down with bipartisan support.
The measure is advancing through Congress amid fears same-sex marriage is under threat after the U.S. Supreme Court overturned Roe v. Wade, when U.S. Associate Justice Clarence Thomas writing in a concurrence he’d like to revisit the the Obergefell decision along with the Lawrence v. Texas and Griswold v. Connecticut cases. No other justices signed Thomas’s concurrence, nor is any state legislature or court case advancing a challenge to marriage rights for same-sex couples.
The Respect for Marriage Act wouldn’t keep same-sex marriage the law of the land if the Supreme Court were to strike down Obergefell per se, but rather repeal from the books the Defense of Marriage Act, which the Supreme Court struck down in 2013, and require states to recognize same-sex marriages performed elsewhere. There would be constitutional issues if Congress required states to accommodate same-sex couples in their marriage laws, which have been under the jurisdiction of the states.
The marriage bill, which would codify existing law and make no additional changes, has momentum and is poised for a vote in the Senate, while the Equality Act, a measure that would expand long-sought after non-discrimination protections in federal law, remains pending in the chamber and is all but dead. No Republican support currently exists for the Equality Act, unlike the Respect for Marriage Act.
One LGBTQ lobbyist said anytime a LGBTQ rights measure like the Respect for Marriage Act gets a win, it can only have a positive impact on other measures, but was ultimately circumspect about expressing optimism for any prospects for a non-discrimination bill.
“As far as the clock on this Congress, we don’t have a lot of time left,” the lobbyist said. “While I think we were getting closer to 60 on something on non-discrimination protections, maybe not the full Equality Act, it’s hard to see the time working in our favor for this Congress, but I do think this vote in broad strokes helps us.”
