For weeks, a small bipartisan group of senators has tried to get more Republicans on board with the Respect for Marriage Act, a bill that would codify the right to same-sex marriage into federal law. The issue gained new salience after the Supreme Court overturned Roe v. Wade in June. Justice Clarence Thomas’s concurring opinion in Dobbs v. Jackson Women’s Health Center invited conservatives to challenge Obergefell v. Hodges in similar fashion—all but making it plain that the decision legalizing same-sex marriage across the country could be next.
The House passed the Respect for Marriage Act in July, garnering 47 Republican votes along the way. But its sponsors in the Senate have struggled to gain commensurate GOP support. In order to avoid a filibuster, the bill would need the votes of 10 Republican senators along with all 50 Democrats. It does not have sufficient support to pass at the moment; Republicans have raised concerns about religious exceptions or, speaking frankly, the politics of voting for a bill that could alienate their conservative base and hand Democrats a win ahead of a critical midterm election.
The charm offensive to obtain the votes required for the bill’s passage has been led by Democratic Senators Tammy Baldwin and Kyrsten Sinema and Republican Senators Susan Collins, Rob Portman, and Thom Tillis. Baldwin is a lesbian, Sinema is bisexual, and Portman’s son is gay. Portman was spotted sharing texts with Republican senators, and Baldwin, Sinema, Collins, and Tillis huddled on the Senate floor on Thursday before the whole gang met with Senate Majority Leader Chuck Schumer.
But Republicans seemed wary of voting for the measure on Thursday. “They’ll get more votes in November and December than they’ll get on Monday,” GOP Senator Roy Blunt told reporters. Senator John Thune, the minority whip, observed: “I think it complicates us doing it now in the middle of a fairly hotly contested political season.”
Baldwin said on Thursday afternoon that the vote on the bill would be held off until after the midterm elections, an announcement shortly followed with a statement from the bipartisan group.
“Through bipartisan collaboration, we’ve crafted commonsense language that respects religious liberty and Americans’ diverse beliefs, while upholding our view that marriage embodies the highest ideals of love, devotion, and family,” the statement said. “We’ve asked Leader Schumer for additional time and we appreciate he has agreed. We are confident that when our legislation comes to the Senate floor for a vote, we will have the bipartisan support to pass the bill.”
This decision, while a practical acknowledgment of the realities of politics, was guaranteed to upset a lot of progressives on Twitter. (And in the real world, too—Senator Elizabeth Warren told reporters that “they should be put on the record today.”) But there’s a relevant adage of congressional politics to apply to this situation: Do you want to make a point, or do you want to make a law?
Democrats can hold a vote on the bill anytime before the election; their likely reward will be to watch it fall short and accept the grist for a midterm ad or two about how Republicans are against same-sex marriage as their consolation prize. But Democrats have a very good chance of losing one or both chambers of Congress, and there’s no guarantee a Republican House would bring this bill up for a vote next year. So Democrats would be squandering their one chance to pass major, consequential legislation that would protect the rights of millions of people to marry their partners.
But wait! Why not just hold the vote before the election, and then bring it up for a second vote afterward? Well, there are several problems with that strategy. Number one: The bipartisan group asked Schumer for more time, so if he overruled them and brought it up for a vote anyway, that would seriously anger Republicans and put an end to any opportunity to garner the 10 necessary votes before the election. Number two: Republicans wouldn’t just turn around after the election and vote for the bill during the lame duck session after Democrats forced them to take a difficult vote for political reasons.
“Leader Schumer is extremely disappointed that there aren’t 10 Republicans in the Senate willing to vote yes on marriage equality legislation at this time,” said Justin Goodman, Schumer’s spokesperson, in a statement. “Because Leader Schumer’s main objective is to pass this important legislation, he will adhere to the bipartisan group of Senators’ request to delay floor action, and he is 100 percent committed to holding a vote on the legislation this year before Justice Thomas has a chance to make good on his threat to overturn Obergefell. Just like he has persisted for the last two years on legislation that no one thought could pass, Leader Schumer will not give up and will hold the bipartisan group to their promise that the votes to pass this marriage equality legislation will be there after the election.”
Portman told reporters on Thursday that the decision to punt the vote “means Democrats want to get results.” Democratic Senator Richard Blumenthal said he preferred “to put everyone on the record” but understood the realities of politics. “I understand the decisions that are made about when the prospects are best for passing the measure. I want a law, not just a bill,” Blumenthal said.
The group plans to introduce language protecting religious liberty, which its Republican co-sponsors say will help it to pick up more votes. And doing something in good faith—pushing the deadline back to give Republicans political cover—shows the group’s seriousness. A senior Republican aide told me that it was likely the bill would pick up more votes after the election.
There’s actually some precedent for this kind of political maneuvering. Congress passed the bill repealing “Don’t Ask, Don’t Tell” during the lame duck session after the 2010 midterm elections, in which Democrats lost the House by a significant margin. An effort to repeal the policy had failed to garner sufficient votes earlier that year.
It’s not my job to determine the merits of holding off on supporting a bill until you know it can’t hurt you politically. Leave those aspersions for the pundits to cast. This is the reality of politics, how the sausage gets made, name your favorite cliché. And this is still a gamble for the group and Senate Democrats. If the bill is unable to garner sufficient Republican votes even after the election—a scenario that Senate leadership and the bipartisan group clearly finds unlikely but which is still possible—then supporters of LGBTQ rights will have ample reason to be angry. Until that time, however, it might make more sense to preserve their energy.