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Analysis | No major shift for GOP on same-sex marriage, despite Roe’s 2022 impact

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Republicans suffered a disappointing 2022 election. And that was due in no small part to the Supreme Court’s nullification of a personal right it had once granted — the right to an abortion — a decision that undermined many Republicans’ unpopular views on the subject in the spotlight.

But the GOP shows no signs of a large-scale shift.

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

That the GOP helped pass the bill could shield the party from criticism that it stands in the way of policies supported by 7 in 10 Americans. And it’s off the table some among the most disturbing political possibilities was that the court would also overturn same-sex marriage rights, as Democrats have warned. (The bill is essentially designed to prevent that possibility; the court has already legalized same-sex marriage nationwide.)

But this bill was more modest than many people realize. And the percentage of GOP senators who voted no — about three-quarters — was similar to the percentage of House Republicans who did four months ago. Even this summer, GOP Leader John Thune (RS.D.) of the 2nd Senate indicated that there were probably enough votes to make it in the Senate. And the bill was delayed until after the election in hopes it could gain more GOP support. But the events of the intervening months apparently didn’t influence enough Republicans to get well past 60 votes. Time — and an election — have not expanded GOP support in the Senate.

Grassroots appeal still won the day for the vast majority of the party, as it almost always does.

While the bill is often characterized as codifying same-sex marriage into law, it doesn’t actually go as far as the 2015 court 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. Goods Obergefell to be overturned, a state could still ban same-sex marriage, but it would have to recognize marriages from other states, just like the federal government. (The bill offers similar protections for interracial marriages.)

Some proponents of same-sex marriage argued that this was insufficient and would not go far enough to truly protect LGBTQ rights. But the bill was designed to pass constitutional scrutiny and survive possible litigation, given that the Supreme Court has repeatedly ruled that the federal government cannot “command” states to pass laws such as those recognizing same-sex marriage.

So basically, lawmakers didn’t even vote to force every state to legalize same-sex marriage. They were only asked to codify state and federal recognition of a right that the Supreme Court says already exists.

Republicans had walked a fine line on this issue; many of them did not emphasize their factual positions on same-sex marriage. Some argued that the bill did not contain sufficient protections for religious freedom, although an agreement had recently been reached to expand it. Their main argument was largely that the bill was unnecessary because the Supreme Court was unlikely to do to same-sex marriage what it did to abortion rights.

Justice Samuel A. Alito Jr. in his opinion Dobbs v. Jackson Women’s Health Organization and Judge Brett M. Kavanaugh, in his agreement, ensured that the decision’s reasoning did not jeopardize the court’s previous rulings legalizing birth control, interracial marriage, and same-sex marriage. (Justice Clarence Thomas, however, undermined that by saying that the birth control and same-sex marriage decisions do indeed need to be reconsidered).

This allowed Republicans to step on the contents of the Respect for Marriage Act to some degree — and instead say they voted against it for technical reasons, just as many of them insisted they voted against convicting Trump in his second impeachment trial due to a technical problem. .

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

Nor is there any doubt where the public perception of same-sex marriage ends up; consensus on this subject has been building faster over the past quarter century than arguably on any other major subject, and there are no signs that it will stop building.

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

But the vast majority of Republicans in Congress just cast a vote at odds with the American public. Not only are 7 in 10 Americans in favor of same-sex marriage, but previous polls suggest that support for the content of the Respect for Marriage Act could be even slightly higher. A Quinnipiac University poll shortly after the 2015 Obergefell The decision found that Americans voted against allowing states to ban same-sex marriage by 13 points at the time. Still, they supported a demand that states recognize legal same-sex marriages from other states by an even wider margin: 21 points.

What’s more, as much as Republicans assure that the Respect for Marriage Act was unnecessary, polls conducted in the immediate aftermath of the court’s overthrow Roe against Wade suggested that they were out of step with the public on this point: Majorities were indeed concerned that same-sex marriage would be next, or thought it likely that it would—56 percent, anyway.

This was an opportunity to address those concerns and align with a large majority of the public. But even those who suggested they might get “yes” or support same-sex marriage rights — such as Sen. 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 passed largely thanks to moderates and outgoing senators, who cast a majority of the 12 Republican “yes” votes.

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