WASHINGTON — The House plans to vote this week to codify same-sex marriage and legal contraception nationwide, fearing that the Supreme Court could rescind those rights after it overturned the constitutional right to abortion last month.
The Democratic-controlled chamber is set to vote Tuesday on the Respect for Marriage Act, which would establish legal protections for marriage between same-sex couples nationwide, according to Majority Leader Steny Hoyer's office. The House is poised to vote later in the week on the Right to Contraception Act, a bill that would protect access to birth control.
Democratic leaders said they plan to bring those bills to a vote after Justice Clarence Thomas, writing separately in the ruling to overturn Roe v. Wade, said the newly conservative Supreme Court should follow its abortion ruling by rescinding Obergefell v. Hodges and Griswold v. Connecticut, which prohibited states from banning gay marriage and contraception, respectively.
Speaker Nancy Pelosi told Democrats in a letter Monday that the House will pass the bills "this week" to enshrine those rights in order “to protect freedom in our nation, as extremist Justices and lawmakers take aim at more of our basic rights.”
The two measures are expected to pass the House with Democratic support — and potentially some Republicans. It's unclear if they can pass the Senate, which is split 50-50 between the two parties and where the bills would need at least 10 GOP votes to defeat a filibuster. Sen. Susan Collins, R-Maine, is a co-sponsor of the marriage equality bill, but is the only Republican senator, so far, to champion the bill.
Sen. Ted Cruz, R-Texas, meanwhile, said Saturday that the 2015 decision legalizing same-sex marriage nationwide was “clearly wrong” and an example of the justices “overreaching.”
“Obergefell, like Roe v. Wade, ignored two centuries of our nation’s history,” he said on “Verdict with Ted Cruz,” his podcast. “Marriage was always an issue that was left to the states.”
Cruz said Monday that states should not be allowed to ban other categories of marriage. Asked by NBC News if he believes the Supreme Court should overturn Loving v. Virginia, which found a right to interracial marriage, Cruz said, “Of course not.”
“Because Loving was plainly correct,” he said, arguing that that decision was based on the equal protection clause of the 14th Amendment, which he said, “was passed to eliminate government racial discrimination.”
Democrats are using threats to same-sex marriage and contraception to try to galvanize voters in the 2022 midterm election.
“People should be concerned, based on how the Supreme Court ruled in overturning Roe v. Wade. This is clearly an activist court,” Sen. Gary Peters, D-Mich., the chair of the Democratic Senate campaign arm, said in an interview.
Can contraception and same-sex marriage protections pass the Senate?
Although the Senate has not scheduled votes on either bill, Senate Majority Whip Dick Durbin, D-Ill., said Monday that the chamber should vote on enshrining those two rights.
"I'm really sorry to say that, but Clarence Thomas was very clear in his position here. I wish it weren't necessary but I think it is," Durbin said in response to a question from NBC News. "I can remember when states regulated birth control — you would go into a gas station, into the men's room, and there was a condom machine. And it had a label on it: 'For the prevention of disease only.' Because the states had said that's the only reason that you can legally buy a condom in America."
Durbin said he believes the two proposals could get 60 Senate votes.
“Did you notice how quiet the Republicans were when the same-sex marriage issue finally emerged during the Obama administration?" he said. "They get it. They’re on the wrong side of history."
In 2015, the 5-to-4 Supreme Court ruling that legalized same-sex marriage nationally prompted a tactical retreat by Republicans as public opinion was moving rapidly toward support of the right. But the court’s newly constructed 6-to-3 majority — seen as the most conservative in nearly a century — offers the tantalizing possibility for opponents of gay marriage that the ruling could also be reversed.
The votes could put Republican senators in a difficult position, with Senate Minority Leader Mitch McConnell seeking to downplay cultural hot button issues where his party is at odds with public opinion in order to protect GOP candidates in the fall midterm elections.
But many Republican senators are wary of alienating their culturally conservative base, which is disillusioned by the pace of social change in the United States and has little interest in seeing their elected representatives codify those rights. Last week, Republicans blocked a bill to protect interstate travel to legally get an abortion.
And on Monday, Senate Republicans appeared conflicted when asked if same-sex marriage and contraception should be rights.
Sen. Ron Johnson, R-Wis., called those proposals "a hypothetical" and added that he'll "see what happens" if they come up.
Sen. Joni Ernst, R-Iowa, a member of GOP leadership, said she would "have to look at any text" on codifying legal birth control.
"I don't know that we need to codify things like that. Shouldn't that be states and local jurisdictions, maybe?" she said. "I would just have to see how it's worded. But, no, I think women should have access to contraception. But it depends on the definition of contraception."
Sen. James Lankford, R-Okla., accused Democrats of seeking to “ramp everybody up leading up to the election to say, ‘Oh, my gosh, Republicans are coming after you’ kind of theme that they seem to be running right now.”
When asked if Congress should establish a right to contraception, he said “there already is” a right under Supreme Court precedent.
Rep. Susan Wild, D-Pa., who is fighting to hold her seat this fall, said her constituents are “outraged” by the rescinding of their rights by the court and that she strongly supports both bills. As for contraception, she said, “I can’t even believe that I have to be talking about this issue, quite honestly.”