Post-Roe, bill to codify same-sex marriage may have a shot at Senate passage

In an unexpected consequence of the Supreme Court’s reversal of the Roe vs. Wade decision, Congress may be poised to codify same-sex marriage rights.

Fearful that the rollback of abortion rights is merely a precursor to the reversal of other major Supreme Court decisions protecting same-sex marriage and the use of contraception, Democrats are pushing bills that would enshrine both into law.

The House this week voted 267 to 157 — with the support of 47 Republicans — to codify marriage equity. A vote is expected Thursday on contraception.

If Congress codifies same-sex marriage, it will mark a stunningly quick reversal from one of the most controversial social issues of the early 2000s, when Republicans widely campaigned on banning gay marriage.

The same-sex marriage vote faces an uphill battle in the Senate, where Democrats will have to pick up the support of 10 Republicans to overcome a filibuster, assuming all 50 members of the Democratic Caucus support the measure. But in a nod to the dramatic swing some Republicans have undertaken on the issue, there are signs some will cross party lines.

Sen. Rob Portman of Ohio, who was the first Republican to support same-sex marriage in 2013 after his son came out as gay, is expected to join Sen. Susan Collins (R-Maine) as a co-sponsor of the bill.

Sen. Thom Tillis (R-N.C.) told CNN he “probably will” support the bill, and Sen. Lisa Murkowski (R-Alaska) has previously expressed support for codifying same-sex marriage.

Democrats are hoping the first glimmers of support from Republicans will snowball into wider support. They could pick up a few votes from retiring Republicans or from those who joined bipartisan bill efforts earlier this year.

“I was really impressed by how much bipartisan support it got in the House,” Senate Majority Leader Charles E. Schumer (D-N.Y.) said Wednesday. “We’re working to get the necessary Senate Republican support to ensure it would pass.”

The bill would prohibit any state from discriminating against same-sex couples married in other states and repeal the Defense of Marriage Act, widely known as DOMA, which recognized only marriages between a man and a woman.

The court struck down DOMA in its 2015 Obergefell vs. Hodges decision, rendering the law moot. Enshrining marriage equity into law would ensure DOMA would not go back into force if the court were to overrule Obergefell.

The bill would also enshrine interracial marriage, a right granted in the Supreme Court’s Loving vs. Virginia case in 1967.

Justice Clarence Thomas, in a concurring opinion in the Dobbs vs. Jackson Women’s Health Organization abortion case, said that after Roe, the court should reconsider its previous rulings on same-sex marriage and contraception.