by Gabe Fleisher
Good morning! It’s Wednesday, July 20, 2022. Election Day 2022 is 111 days away. Election Day 2024 is 839 days away.
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Will Congress codify same-sex marriage?
Tuesday was a busy day at the U.S. Capitol: protesting lawmakers were arrested, a powerful judge was confirmed, and questions continued to swirl on Democratic plans to advance a party-line spending package.
There were lots of important issues at play — and I’ll be covering them all in the coming days. But, in my view, the most historic debate under the dome on Tuesday was whether Congress will move to codify same-sex marriage. That’s what I focused on while I was on the Hill; now let me bring you up to speed:
How we got here
Same-sex marriage has undergone a long transformation as a political issue. In 1996, Congress passed the Defense of Marriage Act (DOMA), which defined marriage for federal purposes as “a legal union between one man and one woman” and allowed states to refuse to recognize same-sex marriages.
The bill passed with large bipartisan support — 342-67 in the House, 85-14 in the Senate — and was signed into law by a Democratic president, Bill Clinton. According to a Gallup poll at the time, just 27% of Americans believed same-sex marriages should be recognized by the law.
DOMA would later be found unconstitutional by the Supreme Court in 2015, in the Obergefell v. Hodges decision that legalized same-sex marriages nationwide. By then, 58% of the nation was on board — including then-President Barack Obama, who declared that he’d “been going through an evolution on this issue.” (Support for same-sex marriage has now climbed to 71%, a stunning rise from its 90s-low.)
Obama’s vice president, Joe Biden, who had backed DOMA not long before, famously beat him to the punch by just a few days and was one of the first national figures to announce his support.
The court decision temporarily defused same-sex marriage as a political issue, but it’s come roaring back in light of last month’s decision in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade.
In his concurring opinion, Justice Clarence Thomas suggested that Obergefell was one of the next precedents the court should reconsider; none of the other justices took that stance, but that was enough for lawmakers to decide it was time to act again.
What happened on Tuesday
Technically, all this time, DOMA has remained on the books, even if the Supreme Court has blocked it from being enforced. If a future court were to change its mind, the measure would once again be law — as would now-dormant same-sex marriage bans in 35 states, much like the abortion bans that came back to life after Dobbs.
That’s why the House voted on Tuesday to pass the Respect for Marriage Act, which would repeal DOMA and prohibit states from blocking any marriages “on the basis of the sex, race, ethnicity, or national origin.” (That means it would not only codify Obergefell, but also Loving v. Virginia, the 1967 decision legalizing interracial marriages.)
The Hill buzzed with speculation throughout the day over how many Republicans would support the measure. Expectations rose as the day, as reporters slowly upped their guesses from around 10 to several dozen. House GOP leadership declined to take an official stance on the bill, telling their members to vote their conscience.
When the time of the vote came, I was in the press gallery overlooking the House chamber. Suddenly, all of the other reporters turned around to face away from the chamber: the wall of the gallery had been lit up with the names of every House member, and suddenly green Y’s and red N’s began appearing next to them, showing how they were voting in real-time.
The assembled reporters ran around, engaged in a collective scavenger hunt to piece together all of the Republican Y’s (“McCarthy’s a No!” “Emmer’s a Yes!”). In the end, 47 Republicans voted for the bill — a final roll call of 267-157. I watched as a beaming Speaker Nancy Pelosi led about half the chamber in loud cheers and applause, taking in the historic moment.
Over to the Senate
Let’s crunch some numbers: Out of the 211 Republicans in the House, 47 voted for the Respect for Marriage Act. That’s 22% of the caucus.
If 22% of the 50 Senate Republicans were to back the measure, that would come to 11 — exactly one more than the 10 who would be needed to break a filibuster and let the bill advance. Furthermore, for most bipartisan bills, a higher proportion of Senate Republicans cross party lines than do their House counterparts.
But when I asked Senate Republicans for their stance on the bill, few divulged an answer. A sampling:
- “I’m going to delay announcing anything on that issue until we see what the majority leader wants to put on the floor,” Senate Minority Leader Mitch McConnell (R-KY) told me.
- “I’d have to read it first,” Sen. Cynthia Lummis (R-WY) said. In general, I followed up, did she believe Obergefell was correctly decided? “In general, I’d have to read it first,” she responded, without clarifying if she was still referring to the bill or to the seven-year-old Supreme Court decision.
- “We haven’t seen language on it,” Sen. Ron Johnson (R-WI) replied, although the language of the House bill is publicly available.
- “Is that on the floor? I’ll read bills when they show up,” Sen. John Barrasso (R-WY) echoed.
- “That’s a hypothetical,” Sen. Joni Ernst (R-IA) said. When I pointed out that it wasn’t much of one, since the House was voting that day, she replied: “The House is, but the Senate’s not.”
- “Why don’t you send me an email?” a spokesperson for Sen. Tim Scott (R-SC) asked when I tried to press her boss. I emailed her, but never received a final answer in response.
It’s not hard to understand why Senate Republicans, from McConnell on down, are hesitant to take a position. The issue is lose-lose politically for many of them: voting “no” would put them, in an election year, on the opposite side of more than 70% of the electorate. But voting “yes” could invoke the fury of the social conservatives who make up their base.
Still, their insistence that they’d need to wait to give an answer was hard to square, considering the issue has been one that has riled public debate for decades now.
If 10 Republicans do support the bill, it would make for a historic moment in that long-running debate: the first time Congress has affirmed the legality of same-sex marriages in the U.S.
Just two Senate Republicans offered firm stances: “Nope, I won’t vote for the bill,” Sen. Lindsey Graham (R-SC) told me. Sen. Susan Collins (R-ME), meanwhile, reiterated her support for the measure, telling me that she was “pleased to be a co-sponsor.” (She is the only GOP co-sponsor to sign on so far.)
I also spoke to Sen. Ted Cruz (R-TX), who many Democrats cited throughout the day as inspiration in their push to codify same-sex marriage, after he opined in a podcast episode last week that the Supreme Court had been “clearly wrong” in its Obergefell decision.
Walking beside the Senate’s underground subway, Cruz insisted to me that the “left-wing Twittersphere and the corporate media” had taken his comments “wholly out of context,” although he then went on to repeat exactly what has been reported: “Yes, I believe Obergefell was wrongly decided.”
Still, he said, it was important to note that he found it “very unlikely that the court revisits that decision,” pointing out that the conservative justices (save Thomas) had said as much in their Dobbs opinion. I pointed out that many of those justices had also indicated they wouldn’t revisit Roe.
“No, they didn’t say that,” he responded. (Several of them referred to the abortion decision as settled precedent during their confirmation hearings.)
A crunch for time
One thing that struck me during my conversations with senators on Tuesday was how little Democrats wanted to talk about same-sex marriage too.
“We’ve got a lot going on right now, but we may do that,” Sen. Gary Peters (D-MI) told me flatly, evincing little concern.
I detected something of a gap between some of the senators’ public rhetoric on the issue, and their plans in reality. “Americans should be able to marry who they want and who they love,” Sen. Elizabeth Warren’s (D-MA) office tweeted Tuesday night. Noting that the House had passed a bill to that effect and accusing “right-wing extremists” of “plotting to strip away this fundamental right,” she added: “Now, the Senate should do its part.”
But when I followed up with the senator herself just minutes later, asking whether the Senate should hold a vote on the House bill, she answered non-chalantly: “Sure.” Asked how quickly the chamber should move on it, she replied: “I don’t know. We have very limited floor time.”
“We have more priorities than we have time,” Senate Majority Whip Dick Durbin (D-IL) similarly said to another reporter.
Indeed, Senate Democrats are hoping — all in the next few weeks — to make progress on a long-sought prescription drug pricing package, a major bill injecting funds into the U.S. semiconductor industry, and a series of President Biden’s nominees to the federal bench.
Why does it all have to be done in the next few weeks? Because lawmakers are headed out of town, of course.
The Senate traditionally takes an August recess, which is scheduled to begin this year on August 8. Some whispers began circulating around the Capitol on Tuesday about canceling the break — but there are always whispers of that, and it’s unlikely they’d come true, seeing as Democrats in competitive races want to use the time to go home and campaign.
“It’s always possible,” Durbin said Tuesday about a vote to codify same-sex marriage, mentioning separately that he’d personally be fine staying in through August, although he wasn’t sure about his colleagues.
At the end of the day, electoral considerations tend to be the ruling factor in any legislative timeline. “We have members who want to go home for obvious reasons,” Durbin admitted.
More news you should know
— “Trump-backed Cox wins Md. governor primary over Hogan’s pick” Associated Press
— “Secret Service provided a single text exchange to IG after request for many records” CNN
— “Top GA GOP officials, false electors targeted in Trump election probe” Peach State Politics
— “CDC clears Novavax Covid-19 vaccine for adults, says shots will be available in the coming weeks” CNBC
— “Doctor in 10-year-old’s abortion case takes legal step against Indiana AG” Washington Post
What’s going on in politics today
All times Eastern. Click on an event’s time to watch it.
President Biden will receive his daily intelligence briefing (9:30 am) and then travel to Somerset, Massachusetts to deliver remarks on climate change (2:45 pm).
- Biden’s speech will take place at a former coal-fired power plant that is being remade into a source of wind energy, a transition symbolic of Biden’s efforts to prod America away from fossil fuels and towards cleaner sources of energy.
- The president is expected to unveil new climate-related executive actions, although he will not declare a national climate emergency. When I asked him about the issue on Tuesday, Senate Majority Leader Chuck Schumer (D-NY) urged Biden to declare an emergency and said “there are lots” of other actions he hopes the president takes, but he declined to name them.
Vice President Harris has no public appearances on her schedule for the fifth time in the last six days.
First Lady Biden will travel to New Haven, Connecticut to visit a summer learning program for elementary school students hosted at Albertus Magnus College (1 pm).
The Senate will vote to confirm Gregory Williams as a U.S. district judge in Delaware and to advance Natasha Merle’s nomination to be a U.S. district judge in New York.
The House will vote on a roughly $405 billion package that combines the Democratic proposals for six of the 12 appropriations bills that Congress must pass each year to fund the federal government.
- In theory, lawmakers have until October 1 to pass the 12 appropriations measures — although Congress often just passes a series of continuing resolutions to temporarily keep government funding at its existing levels. These will be the first of the 12 appropriations bills to pass either chamber.
The House Judiciary Committee will meet (10 am) to vote on the Assault Weapons Ban Act and the Equal Access to Justice for Victims of Gun Violence Act, which would repeal a 1995 law that grants immunity to gun manufacturers and distributors from being sued when crimes are committed using their products.
- It will be the panel’s first time advancing an assault weapons ban since Congress enacted one in 1994; that ban expired in 2004 and was not renewed. It is unclear if the measure will have enough votes to pass once the Judiciary Committee sends it to the floor.
Ukrainian First Lady Olena Zelenska will deliver remarks at the Capitol to members of the House and Senate (11 am). Zelenska has been in Washington all week, meeting with Secretary of State Antony Blinken, First Lady Jill Biden, and other officials.
The Supreme Court is out until October.
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