No big shift for GOP on same-sex marriage, despite impact of Roe on 2022

But the GOP has showed no signs of making a large-scale shift.

Republicans on Wednesday did provide enough votes to advance the Respect for Marriage Act, which would ensure federal and state recognition of legal same-sex marriages. Twelve GOP senators helped the bill clear the 60-vote threshold by two votes. That follows on the 47 House Republicans who voted for the measure this summer. Once the Senate officially passes the bill, its slightly different version will go back to the House before President Biden signs it.

That the GOP helped pass the bill could insulate the party from criticism that it stands in the way of a policy supported by 7 in 10 Americans. And it takes off the table some of the most troubling political possibilities were the court also to overturn the right to same-sex marriage, as Democrats have warned it might. (The bill is essentially intended to guard against that possibility; the court already legalized same-sex marriage nationwide.)

But this bill was more modest than many people realize. And the percentage of GOP senators who voted against it — around three-quarters — was similar to the proportion of House Republicans who did so four months ago. Even this summer, No. 2 Senate GOP leader John Thune (R-S.D.) indicated that there were probably were enough votes to pass it in the Senate. And the bill was delayed till after the election in hopes it could garner more GOP support. But the events of the intervening months apparently didn’t sway enough Republicans to get it very far past 60 votes. Time — and an election — did not expand GOP support in the Senate.

The pull of the base still won the day for the vast majority in the party, as it almost always does.

While the bill has often been characterized as codifying same-sex marriage into law, it actually doesn’t go as far as the court’s 2015 decision in Obergefell v. Hodges. While that decision forced states to issue same-sex marriage certificates, this bill only requires the federal government and states to recognize legal same-sex marriages. Were Obergefell to be overturned, a state could still ban same-sex marriage, but it would have to recognize marriages from other states, as would the federal government. (The bill provides similar protections for interracial marriage.)

Some same-sex marriage proponents argued that this was insufficient and wouldn’t go far enough to truly protect LGBTQ rights. But the bill was aimed at passing constitutional muster and surviving potential court challenges, given that the Supreme Court has repeatedly ruled that the federal government can’t “commandeer” states to pass laws like ones recognizing same-sex marriage.

So, basically, lawmakers weren’t even voting to compel every state to legalize same-sex marriage. They were merely asked to codify state and federal recognition of a right that the Supreme Court has ruled already exists.

Republicans had walked a fine line on this issue; many of them did not emphasize their actual positions on same-sex marriage. Some argued that the bill contained insufficient religious-liberty protections, although an agreement was recently reached to expand them. Largely, their main line of argument was that the bill was unnecessary, because it was implausible that the Supreme Court would do with same-sex marriage what it did with abortion rights.

Justice Samuel A. Alito Jr. in his opinion in Dobbs v. Jackson Women’s Health Organization and Justice Brett M. Kavanaugh in his concurrence took great care to say that the decision’s reasoning did not endanger the court’s previous rulings legalizing contraception, interracial marriage and same-sex marriage. (Justice Clarence Thomas, however, undercut that by saying the contraception and same-sex marriage decisions should, indeed, be revisited).

This allowed Republicans to some degree to punt on the substance of the Respect for Marriage Act — and instead to say they were voting against it on technical grounds, just as many of them emphasized they voted against convicting Trump in his second impeachment trial on a technicality.

But for a party that has for decades derided “activist judges” and “legislating from the bench,” this was an opportunity to put Congress’s stamp of approval on this right. And while it may, indeed, be unlikely that the court will ever overturn same-sex marriage, the idea is hardly ridiculous, given what transpired this summer with a decades-older right with more precedent behind it.

Nor is there any real question about where public perception lands on same-sex marriage; consensus on this issue has built faster than arguably on any other major issue over the past quarter-century, with no signs that it will stop building.

The GOP’s approach has long been to just stop talking about it, and they got an assist in 2015 when the Supreme Court effectively took the issue off the table. The thinking now is apparently that they gave the Respect for Marriage Act enough votes to ensure the issue will soon leave the spotlight without requiring them to fully embrace same-sex marriage — and that might ultimately be a safe political play.

But the vast majority of Republicans in Congress did just cast a vote at odds with the American public. Not only do 7 in 10 Americans support same-sex marriage, but past polling suggests that support for the substance of the Respect for Marriage Act might even be slightly higher. A Quinnipiac University poll shortly after the 2015 Obergefell decision showed that, at the time, Americans opposed allowing states to prohibit same-sex marriage by 13 points. Yet they supported requiring states to recognize legal same-sex marriages from other states by an even larger margin: 21 points.

What’s more, however much Republicans offer assurances that the Respect for Marriage Act was unnecessary, polls conducted in the immediate aftermath of the court’s overturning Roe v. Wade suggested they were out of step with the public on this: Majorities were indeed concerned that same-sex marriage would be next, or felt that it was likely that would happen — 56 percent in each case.

This was an opportunity to put those concerns to rest and align with a strong majority of the public. But even those who suggested they might get to “yes” or that they supported the right to same-sex marriage — like Sens. Ron Johnson (R-Wis.) and Tommy Tuberville (R-Ala.), respectively — were not moved to vote that way, even after the events of the 2022 election. The bill was passed in large part thanks to moderates and retiring senators, who delivered a majority of the 12 Republican “yes” votes.