Dozens of House Republicans voted with Democrats on Tuesday to codify same-sex marriage into federal law, breaking with the party’s longstanding position that marriage remains between one man and one woman.
Forty-seven Republicans across 21 different states joined a unanimous Democratic caucus in supporting the legislation, the Respect for Marriage Act, by a vote of 267-157, including Rep. Elise Stefanik of New York, the No. 3 Republican in the House; Rep. Liz Cheney of Wyoming; and Rep. Tom Emmer of Minnesota, who is the chairman of the National Republican Congressional Committee. The measure would repeal the Defense of Marriage Act of 1996, enshrine legal same-sex marriage for the purposes of federal law and bolster legal protections for same-sex married couples.
The move is a turning point for Republican lawmakers who have spent decades opposing the legalization of same-sex marriage and broader LGBTQ rights. It does, however, coincide with the country’s soaring support for marriage equality, which as of last year included a majority of Republican voters.
At least one House Republican who voted in favor of the Respect for Marriage Act expressed regret for a previous vote against same-sex marriage and shared what helped lead to their change of heart.
“In 2017, I expressed my deep regret for voting against a bill legalizing same-sex marriage in New York State while in the State Assembly six years prior. Every legislator has votes they regret, and to this day, that vote was one of the most difficult I’ve had to take,” Rep. Nicole Malliotakis of New York said in a statement Tuesday. “Over the past decade, I have attended two weddings of couples who deserve equal recognition and protection under the law. Today, I will vote to codify same-sex marriage to ensure our fellow Americans continue to have the right to equal marriage and benefits under federal law.”
Another House Republican shared a more flippant quip for why she voted in the bill’s favor.
“If gay couples want to be as happily or miserably married as straight couples, more power to them. Trust me, I’ve tried it more than once,” Rep. Nancy Mace of South Carolina said on Twitter.
Same-sex marriage has been legal across the United States since 2015, when the Supreme Court ruled that the Constitution guarantees the right to marriage equality in the landmark Obergefell v. Hodges case. But since the court walked back on precedent last month in striking down Roe v. Wade — the 1973 ruling that guaranteed a constitutional right to abortion — LGBTQ activists and lawmakers have sounded alarm bells that the court could also overrule its decision on same-sex marriage. At least 29 states still have same-sex marriage bans on the books that could go into effect if the Obergefell decision is overturned, Jason Pierceson, a political science professor at the University of Illinois, told NBC News last month.
In his concurring opinion in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe last month, Justice Clarence Thomas further sparked fears among LGBTQ advocates and Democratic lawmakers when he called on the high court to revisit the 2015 same-sex marriage ruling, among others.
Mary Bonauto, who argued on behalf of same-sex couples in Obergefell v. Hodges and now serves as the civil rights project director at GLBTQ Legal Advocates & Defenders, or GLAD, said the Obergefell ruling is constitutionally correct, but called the new legislation a “very important step” to ensure marriage equality.
“Congress is doing what it can to try and return some sense of stability to people who are now very concerned about their families and what happens to marriage going forward,” Bonauto said. “Let’s just say [if] Obergefell were reversed, which it should not be, then, there’s a failsafe in place, which is that there will always be states that license marriages for same sex couples.”
“I understand the concerns, but I would just say that there’s a reason we won so many of these cases once we got to the federal courts, and it’s hard to articulate a government-based interest for excluding same-sex couples from marriage,” Bonauto added.
Support for same-sex marriage in the U.S. has grown considerably over the last three decades. When the research firm Gallup first began polling support for marriage equality in 1996, just over a quarter of Americans were in favor of legalizing the unions, compared with 71% this year, including 55% of Republicans.
Republican LGBTQ activists praised bipartisan support for the new legislation, citing broader support within the party.
“Log Cabin Republicans thanks these forward-thinking members for voting to settle this issue once and for all and move the Republican Party in line not just with the vast majority of the country, but with the majority of its own voters,” the conservative gay advocacy group said in a statement Tuesday. “We will continue to work with our allies in Congress and elect more candidates in November who understand that inclusion wins. The future of our party and our nation depends on it.”
Gabriele Magni, an assistant professor of political science at Loyola Marymount University in Los Angeles, contended that midterm elections in November played a larger role in Republican support versus public sentiment. Just under half of the 47 Republicans who voted in favor of the measure are either retiring from Congress or are running for re-election in states that have historically voted for Democratic presidents within the last 30 years.
“They’re worried about making LGBTQ rights another mobilizing issue for Democratic voters in the same way that abortion rights could and will likely be in November,” Magni said, referring to the 47 House Republicans. “And to some extent, today, marriage equality is less controversial than abortion rights among the conservative base Republicans rely on.”
Compared with 55% who are in favor of marriage equality, an estimated 38% of Republicans say that abortion should be legal in most or all cases, according to a poll from the Pew Research Center released last month.
For the Respect for Marriage Act to reach President Joe Biden’s desk and become law, the legislation will need to garner 60 votes in the 50-50-split Senate. On the Senate floor Wednesday, Senate Majority Leader Chuck Schumer, D-N.Y., said that he would like to bring the legislation up for a Senate vote — adding that he was “impressed” by support from House Republicans — but did not specify when.
Two of the bill’s co-sponsors, Sen. Susan Collins of Maine and Sen. Rob Portman of Ohio, are the only two Republican senators who have confirmed that they will support the legislation.
Senate Minority Leader Mitch McConnell, R-Ky. said Tuesday that he was keeping his options open.
Republican Sens. Kevin Cramer of North Dakota, Josh Hawley of Missouri, Marco Rubio of Florida and Ted Cruz of Texas have said they would not support the legislation. Other GOP senators, including Mitt Romney of Utah, Joni Ernst of Iowa, and Cynthia Lummis of Wyoming, declined to comment on the bills.
Sen. Tammy Baldwin, D-Wis., the first LGBTQ person elected to the Senate, is leading negotiations with Republicans in the upper chamber. She told NBC News she is optimistic that the legislation could get 10 Republican votes.
“Probably every senator knows members of their community, members of their family, congregants at church; they know couples who have married and know the rights and protections,” Baldwin said. “And I hope they are inclined to protect the continuation of those rights through the passage of the Respect for Marriage Act.”
Baldwin added that she was “very pleased” with the Republican support in the House.
“I would have loved to have seen all the Republicans in the House do the right thing, but 47 is good,” Baldwin said. “And, it’s really great to be able to talk to my Senate colleagues from the Republican Party and say, ‘Hey, from your state, three Republicans voted for this,’ or ‘From your state, it was overwhelmingly supported by the state delegation.’”
While support for same-sex marriage has grown among Republican voters and some Republican lawmakers, the most recent Republican National Committee platform — enacted in 2016 and renewed in 2020 — includes at least five references to marriage as exclusively between a man and a woman.
Republicans have also largely stood in opposition to pro-LGBTQ legislation and simultaneously pushed for anti-LGBTQ measures in state legislatures in recent years.
Last year, the House passed the Equality Act — a landmark LGBTQ civil rights bill that would federally bar discrimination on the basis of sexual orientation and gender identity — with the support of only three Republicans. The bill then stalled in the then-Republican-led Senate later that year.
A historic number of anti-LGBTQ measures, more than 340, have been introduced in state legislatures this year, according to the Human Rights Campaign, the nation’s largest LGBTQ advocacy group. The legislation largely consists of measures that would limit transgender athletes from competing on school sports teams that correspond with their gender identity, access to gender-affirming care for trans people and the instruction of topics related to sexual orientation or gender identity at school.
Magni, the political scientist, argued that same-sex marriage stands out among other pro-LGBTQ policies and causes because of its conservative and religious roots.
“What’s more traditional than marriage?” Magni said. “From a conservative perspective, we’re not tearing down and rebuilding institutions or social structures. We’re just opening a traditional institution to a class of citizens who were previously excluded from it.”