WASHINGTON — A bill to codify federal protections for same-sex marriage has passed the House, but Senate Republicans are agonizing over whether they should block it or allow it to pass.
With Democrats seeking to portray Republicans as belonging to a retrograde and primitive party that wants to strip away modern rights, their decision could play a role in the midterm elections this fall.
Some GOP strategists want the party to move past the issue by codifying protections, but that risks upsetting the cultural conservatives, which make up a significant portion of the party's base. A Gallup poll released last month found that most Americans — 71 percent — favor legal same-sex marriage.
“The issue puts Republicans in an awkward spot," said Jack Pitney, a professor of political science at Claremont McKenna College. "Most Americans support same-sex marriage. Even a majority of self-identified Republicans support it. But evangelicals represent a huge share of GOP activists, and they still oppose it.
“More broadly, Republican activists dislike the idea of giving the Democrats a win — even on an issue where there is consensus in the general public,” he said.
For now, Democrats have locked down nearly half the Republican votes needed to break a 60-vote filibuster. With many GOP senators dismissing the bill as unnecessary and accusing Democrats of trying to weaponize an issue they say is settled, it's still unclear if the legislation will draw enough Republicans to become law.
Same-sex marriage remains legal. But the issue was reignited last month after the conservative-leaning court ended the right to abortion by overturning Roe v. Wade. In that decision, Justice Clarence Thomas, a conservative icon, called on the court to also reconsider nationwide rights to gay marriage and contraception.
The Respect for Marriage Act won 47 GOP votes in the House, including from self-described "ultra MAGA" Rep. Elise Stefanik of New York, and other conservative members. But 157 Republicans voted no, indicating the enduring power of a conservative base that feels threatened by the pace of cultural change.
In the Senate, the bill is co-sponsored by Republicans Susan Collins of Maine, a centrist, and Rob Portman of Ohio, who is retiring and has supported same-sex marriage since 2013, after his son told him he was gay.
Sen. Thom Tillis, a North Carolina Republican, would vote for the bill, his office told NBC News. And Sen. Ron Johnson, a Wisconsin Republican, who faces a challenging re-election race, reluctantly said he'd vote for the bill. “Even though I feel the Respect for Marriage Act is unnecessary, should it come before the Senate, I see no reason to oppose it," he said.
Sen. Lisa Murkowski, an Alaska Republican, said she’s still reviewing the Respect for Marriage Act but noted that she supports same-sex marriage.
But other Republicans, like Sen. Ted Cruz and John Cornyn, both of Texas, have sharply criticized the Supreme Court's decision that legalized same-sex marriage nationwide in the landmark Obergefell v. Hodges ruling in 2015. Cruz's office emphasized that he wasn't predicting it would be overturned.
Sen. Marco Rubio, a Florida Republican, who also faces re-election this fall, will vote against the bill, a Rubio spokesperson said, adding that he believes "it is unnecessary, there are other priorities, and this is an issue he’s always believed should be handled by the states."
Democratic leaders want to vote on the bill — if the bill has the votes.
“I want to bring this bill to the floor, and we’re working to get the necessary Senate Republican support to ensure it would pass,” Senate Majority Leader Chuck Schumer, a New York Democrat, said Wednesday.
The outcome could come down to Senate Minority Leader Mitch McConnell, a Kentucky Republican, who told reporters Tuesday he wouldn't reveal his position until Schumer announces a vote.
“I’m going to delay announcing anything on that issue until we see what the majority leader wants to put on the floor,” he said.
Mitch McConnell's conundrum
McConnell, whose top priority is to win a Senate majority this fall, has sought to downplay cultural issues in the midterm elections and instead make the contest a referendum on President Joe Biden amid voter disenchantment over inflation. His goal is to appeal to suburban swing voters, many of whom lean liberal on cultural issues and had fled the GOP during the rise of Donald Trump.
If he supports or green-lights the bill, it could nudge more GOP senators to vote for it. A Republican leadership aide said that same-sex marriage is not an issue the party is likely to pressure senators to vote one way or the other on, describing it as a personal decision based on conviction and views of the law.
"The issue is especially uncomfortable for Mitch McConnell. The legislation protects interracial marriage — and he is married to an Asian American woman, Elaine Chao," Pitney said.
The political expert said he suspects that "GOP politicians are privately frustrated with Clarence Thomas" after his concurring "opinion gave Democrats a powerful rhetorical weapon against the GOP."
If it is enacted, the Respect for Marriage Act would repeal a law defining marriage as between a man and a woman and bolster protections for married couples of the same sex, leaving affected individuals to fight for the right in court. The bill also establishes safeguards for interracial marriage, which the Supreme Court effectively legalized in a 1967 case, Loving v. Virginia. (Thomas did not call for revisiting interracial marriage.)
It is not clear if the Supreme Court has the votes to overturn same-sex marriage. But Democrats, feeling no sympathy for the GOP’s political conundrum, said they were not willing to take the chance.
"I hope they're facing a dilemma for the fact that they are on board with getting rid of so many of our rights, thanks to this far-right Supreme Court," Sen. Mazie Hirono, an Hawaii Democrat, said. "I would really like it if we had enough for 60 votes to pass the House-passed marriage equality bill. But I don't think we're there."
"Maybe more people are beginning to connect the dots and realize that these are issues that have to do with our civil rights and our constitutional rights," she said. "And maybe there's going to be more of an impetus for the Republicans to get on board."
Senate Minority Whip John Thune, a South Dakota Republican, said he doesn't "see a reason to" pursue the marriage bill.
"I don’t think it’s an issue right now that anybody’s talking about," he told reporters. "I think this is an issue that Democrats have concocted because they like to shift the subject from inflation and gas prices and the border and other issues."