After more than two months of private negotiations over legislation that would codify same-sex marriage rights nationwide, the leading broker for the bill announced on Thursday that a vote on the bill would be postponed until after the midterms—a move, sources close to the negotiations said, is intended to win additional Republican supporters once the issue can’t be weaponized during campaign season.
“I’m still very confident that the bill will pass, but we will be taking the bill up later, after the election,” Sen. Tammy Baldwin (D-WI) told reporters after a caucus lunch with fellow Democrats.
Baldwin, who alongside Sen. Susan Collins (R-ME) led efforts to convince moderate Republican senators to back legislation securing same-sex marriage rights nationwide, had recently predicted that the bill would come up for a vote as early as next week—despite most recent whip counts indicating that only six Republicans would back the measure.
In a subsequent statement, Baldwin and Collins—joined by Sens. Rob Portman (R-OH), Kyrsten Sinema (D-AZ) and Thom Tillis (R-N.C.) said that they had asked for “additional time” to pass the legislation, and that they are “confident that when our legislation comes to the Senate floor for a vote, we will have the bipartisan support to pass the bill.”
According to two sources familiar with the negotiations, Sen. Ron Johnson of Wisconsin privately indicated to the negotiators that he would be willing to consider supporting the marriage bill if it were held up for a vote after the midterm elections. Johnson, who is in a tight race for reelection this cycle, had previously stated that he would support a bill protecting same-sex marriage rights before reversing course earlier this month.
Sen. Rob Portman (R-OH), who supports the bill, told reporters that his Republican colleagues need “more time to digest” the legislation.
“The possibility of a strong bipartisan vote after the elections seems more likely,” Portman said.
The decision to postpone the vote angered some longtime supporters of marriage rights, who see the promise of post-election support as a Lucy-and-the-football-style ruse to avoid political fallout for opposing a popular measure. Ahead of Baldwin’s announcement, some movement leaders quietly indicated that they want a vote held regardless of the whip count—if only to hold Republicans responsible for the bill’s failure in the coming midterms.
“The American people, including a majority of Republicans, support the freedom to marry,” Evan Wolfson, an attorney and marriage-rights advocate who is widely regarded as one of the movement’s founding members, said ahead of Baldwin’s statement. “Republicans have a chance to do the right thing, or should be held accountable for yet again failing to stand up for basic freedom and families.”
With less than four weeks on the legislative schedule before the midterm elections, and the hunt for ten Republican votes to secure a filibuster-proof majority in the Senate hitting repeated snags, supporters of the bill had grown increasingly concerned that time was running out on the issue. After Johnson publicly pulled support last week, some of the marriage-rights movement’s most prominent veterans told The Daily Beast that the vote needed to happen even if Majority Leader Chuck Schumer (D-N.Y.) couldn’t secure those votes. In the past, Schumer has generally avoided scheduling votes that are doomed to fail—but marriage advocates pointed to the failed “Women’s Health Protection Act” vote in May as proof that even a failed vote can have far-reaching political consequences.
“If they filibuster this popular and needed, simple measure, it will be more proof that what voters need to do is elect more Democrats to the Senate to pass reforms and get back to effective governance,” Wolfson said.
Another leading figure in the LGBT-rights movement, who didn’t want to undermine continued efforts by Baldwin and Collins to win over wobbly Republicans by identifying themselves, told The Daily Beast that at this point, they would prefer to hold a losing vote than put the issue off until Republicans can sink it after the election.
“Quite frankly, with marriage being safe for now, I’d rather they force a vote, get Republicans on record and broadly help with the midterms,” they said. “Abortion and marriage might tilt the scales enough.”
Since the fall of Roe v. Wade in June, Democrats have consistently warned that the increasingly right-wing Supreme Court majority could pose a threat to same-sex marriage rights. To that end, the work of securing enough votes to enshrine the right in federal law has largely been left to Baldwin, the first and only openly gay member of the U.S. Senate. Baldwin, who confirmed to The Daily Beast last month that she and the White House were “in touch” on her work wrangling Republican supporters for the Respect for Marriage Act, had remained tight-lipped on how her talks with other members were going, but indicated at the time that the legislation would only face a vote when passage was assured.
The White House’s legislative affairs team had kept tabs with Baldwin on the whip count, but, according to multiple sources familiar with the White House’s engagement, did not directly engage with senators in order to win their support. The strategy follows a string of similar bills, including a similar push to codify abortion protections into federal law, where the legwork was largely left up to members of Congress, rather than the White House’s legislative affairs team.
“There has been no direct engagement,” one leading figure in the fight for same-sex marriage rights told The Daily Beast. “None.”
Some marriage-rights supporters told The Daily Beast that they are frustrated with the idea of the bill being used as an election ploy, given the high stakes of potentially losing a right that was only legalized nationwide seven years ago.
“This is not a political question. This is about families who need security and peace of mind, not politics,” said Julianna Gonen, federal policy director of the National Center for Lesbian Rights. “There is overwhelming public support for the freedom to marry across all political persuasions, and we are one hundred percent focused on doing all we can to make sure this vote reflects the will of the people.”
Still, Gonen said, it’s clear that senators up for reelection who would vote the bill down could face a reckoning at the ballot box.
“There is no advantage to anyone in having lawmakers vote against something that more than seventy percent of the American public supports,” Gonen said.
After the decision in Dobbs v. Jackson Women’s Health overturned Roe, President Joe Biden has repeatedly pointed out that the Supreme Court’s ruling could put previous rulings founded in the right to privacy, including Obergefell, in jeopardy, and has supported codifying Obergefell into federal law to protect it. But with the enormous climate, tax and health bill—perhaps Biden’s last major legislative victory—only barely snatched from the jaws of defeat, there are still more pieces of legislation than can fit on any administration’s plate.
“Legislative affairs is triage—you don’t have enough doctors to keep every bill alive,” said one White House official, who cautioned that while the Respect for Marriage Act isn’t dead on arrival, to use their metaphor, it may be harder to keep alive than the scaled-back reconciliation package.
Biden has a nearly unalloyed record of supporting LGBT rights, most notably for announcing his support for same-sex marriage rights in 2012. His endorsement was seen as a major tipping point in bringing support for marriage rights into the Democratic mainstream, and every LGBTQ advocates and community leader who spoke with The Daily Beast said that they are confident in the president’s personal support—if it ever reaches his desk.
Some leaders have pointed to another signature piece of LGBTQ-rights legislation that has effectively been abandoned, despite Biden’s unflinching support. The Equality Act, which would protect LGBT people from being discriminated against in housing and services, has languished in the Senate for more than a year, with little engagement from the White House beyond Biden’s public support for its passage.
The White House did not respond to a request for comment on its lack of direct engagement on the Respect for Marriage Act, but spokespeople have previously said that a lack of direct negotiation doesn’t preclude involvement in advocating for legislation. Asked about the president’s level of engagement on the bill in the White House briefing room on Tuesday, White House press secretary Karine Jean Pierre demurred, saying that while Biden “has the regular conversation with members of Congress and their staff on just an array of issues.”
Asked whether such a conversation had happened at all, Jean-Pierre said that she had “nothing to share.”
—with additional reporting by Ursula Perano