Nation/World

How a bipartisan group of senators got same-sex marriage protections passed

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WASHINGTON - In July, Sen. Tammy Baldwin (D-Wis.) spotted some of her Republican colleagues on the Senate floor and rushed over to tell them the good news. Forty-seven House Republicans had just voted in favor of protecting same-sex marriage rights for gay couples, following the Supreme Court’s decision reversing Roe v Wade that raised fears the court could overturn same-sex marriage next.

“We could do this,” she recalled saying excitedly to Sens. Susan Collins (Maine), Lisa Murkowski (Alaska), Rob Portman (Ohio) and Thom Tillis (N.C.), who Baldwin, the first openly gay senator, had worked with before in other discussions on protecting LGBTQ rights. Portman, who was the first in his caucus to endorse same-sex marriage back in 2013 and whose son is gay, said he initially felt less optimistic, aware of just how many of his colleagues had “strongly held views” on the issue.

The discussion set off months of negotiations by a bipartisan group of five senators with their Republican colleagues, LGBTQ rights groups and religious organizations, which resulted in Tuesday’s historic Senate vote to repeal the Defense of Marriage Act and guarantee protections for same-sex married couples as well as interracial couples if the Supreme Court were to ever reverse its decisions protecting them. That every present Senate Democrat and 12 Republicans would vote to protect gay unions, after years in which opposing same-sex marriage was the consensus position in Washington, and later, a rallying cry for the GOP base, shows how quickly public opinion has changed on the issue, prompting many lawmakers to follow suit. The bill now heads to the House, where it’s expected to pass and land on President Biden’s desk.

Baldwin supported legalizing same-sex marriage as a state lawmaker back in 1994, before Gallup was even asking the public if they supported that policy in polls. Support has risen from 27 percent in 1996 to 70 percent now in that poll, but national Republicans have been slower to embrace the change, often bringing up fears that religious institutions that don’t support same-sex marriage will be discriminated against. Sen. Mike Lee (R-Utah) argued in an op-ed that the bill would “inflict harm on those who, for reasons rooted in sincerely held religious belief or moral conviction, do not embrace same-sex marriage” and ultimately voted against the bill.

“Some people think that the world has moved on - that’s really not accurate as it relates to many parts of the country,” Portman said. “It’s still a matter of convincing people, persuading people, helping people understand what it all means.”

The surprising show of Republican support for the same-sex marriage bill in the House over the summer showed that what was initially seen as a way for Democrats to force Republicans to take a vote that could alienate some of their constituents during an election year could actually lead to real legislation. The Supreme Court’s unpopular Dobbs decision had changed the political atmosphere. Conservative Justice Clarence Thomas’ comment in his Dobbs concurrence that the court “should reconsider” its opinion protecting gay marriage set off a panic among some same-sex couples that their marriages could be invalidated in the future.

But to convince at least 10 Republicans to back the measure, Baldwin knew she had to overcome skepticism from many Republicans that Democrats just wanted to put them on the spot on an issue that public opinion had recently deserted them on, as well as fierce opposition from social conservative groups and some religious institutions.

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This account of the months-long effort to pass the legislation is the result of interviews with more than a dozen lawmakers, staffers and advocates involved in the bill.

“I think there was a short period of time where there was a belief that this was being pushed for political reasons,” Baldwin said. “My Republican colleagues would say to me, ‘Nobody thinks you’re pushing this for political reasons. They think others are, like the Democratic Party. But nobody is questioning your motives.’ I think that’s helpful. I mean, I really am earnest about this.”

The senators, including Baldwin, Tillis, Portman, Collins, along with Sen. Kyrsten Sinema (D-Ariz.), divided up their Republican colleagues and began to contact them and gather their concerns. Tillis, the former speaker of the North Carolina House, is an experienced vote-counter, while Collins brought a tireless energy to the job, Portman said.

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Baldwin was immediately struck by how many more senators appeared open to the legislation after the Supreme Court’s 2015 Obergefell decision, given how many more of them had openly gay people in their lives.

“I have so many colleagues who have friends, relatives, staff members who are gay and married,” she said. “So there are a lot more people based on those relationships who want to get to yes. And again, those were really moving conversations.”

But Republicans had many concerns, and each one seemed different. The first wave of worry surrounded whether the legislation might be interpreted to mean the federal government recognizes polygamy, so the group quickly agreed to clarify that it didn’t. Others wanted to know whether the bill would affect adoption agencies, or religiously affiliated colleges and universities. And many wanted the legislation to be crystal clear that religious institutions that did not perform or support same-sex marriages would not be punished under the law.

The opposition among some Republicans led to some awkward moments, as many argued that they did not believe the Supreme Court would ever overturn Obergefell and that the legislation was unnecessary. Sen. Marco Rubio (R-Fla.) called the bill a “stupid waste of time” to a reporter in July before walking into an elevator and finding himself squished next to Baldwin. She began making her case for why the bill was necessary in the elevator and continued trying to whip his vote for months, attempting to convince him that the Obergefell decision really was under threat, she said. Rubio voted no on the measure on Tuesday.

By the end of the summer, the group had five Republicans who publicly said they’d support the legislation, and about five more who privately said they would support it. They wanted a couple of more to come along so that no one had to be the “deciding vote” to reach the 60 total votes necessary to move the bill forward, and so that there was wiggle room if anyone got cold feet. One of the original five Republican senators who said publicly they’d back the bill, Sen. Ron Johnson (R-Wis.), later rescinded his support, saying its religious liberty protections did not go far enough.

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Baldwin ran point on the LGBT advocacy groups, and Collins dealt with the coalition of religious groups while the senators worked to amend the bill to explicitly state that the legislation did not infringe on religious liberty. Sinema, who grew up Mormon and is close with key swing vote and Mormon Sen. Mitt Romney (R-Utah), was the chief negotiator with the Church of Jesus Christ of Latter-day Saints, according to Collins, and stressed the importance of bringing the “elders” on board the process.

“My goal when working to find bipartisan consensus is to listen first and foremost to what someone needs and hear what that person needs and then I try to figure out - ‘Is this something I can do? Can I give this person whatever they need?’ " said Sinema, who is the first openly bisexual member of the Senate. “Whether it’s specific language or answering questions.”

But with the midterm elections fast approaching, many Republicans who wanted to back the bill feared taking a potentially controversial vote at a tricky time.

A key turning point for the effort came in mid-September, when the group asked Sen. Charles E. Schumer (D-N.Y.) in a meeting in his office to delay the vote until after the elections, when they believed they’d have enough Republican votes to pass it. Collins said she was “surprised” and pleased when Schumer, who’s known as a ferocious campaigner and could have been tempted to use the issue politically, agreed. But Baldwin wasn’t.

“It’s personal for Chuck Schumer, too,” Baldwin said, referring to Schumer’s daughter, who is in a same-sex marriage. “It’s a family member, and he would not play politics with this. I’ve known that all along. But when you’re the leader of a party [as Schumer is], I’m not sure necessarily other people know that, too.”

The decision to delay prompted blowback from some Democrats who wanted to exert maximum pressure on Republicans ahead of the midterm elections.

“Many questioned if it was the right thing to do,” Schumer said in an emotional floor speech on Tuesday, in which he noted his first call after the bill passed would be to his daughter. “Many on my side of the aisle felt, ‘Put everyone on record right now.’ "

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Over the weeks-long recess during the election, the key members of the negotiating group continued to stay in touch and contact their colleagues to try to convince them to back the bill. They would tag-team calls to members on the fence, backing up each other’s work.

“Thom Tillis throughout the recess kept calling me and said, ‘I talked to fill-in-the-blank today. Can you give a call too?’ " Collins said. “We tried to reinforce each other.”

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Baldwin worried as Election Day neared that if Democrats lost control of the Senate, the calendar would be filled with judicial nominations and must-pass legislation in the final days before the new Congress, crowding out the bill. “My biggest fear was we would not have the time to consider this,” she said.

After Democrats flipped a Republican-held open seat in Pennsylvania and defended their incumbents in key swing states, those fears eased.

But the group still needed to secure the support of at least 10 - and ideally more - senators before the first procedural vote to move forward on the legislation in November. In a Senate split 50-50 between both parties, 60 votes would mean Democrats could overcome any threat of a filibuster to kill the bill.

“We’ve been over our list over and over again and had Zoom meetings and in-person meetings but as I kept saying to everybody, ‘You never know till the roll is called,’ " Collins said. “I’ve learned the hard way you never just get 10 because inevitably it seems somebody you thought you had will end up voting the other way.”

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A key moment came when the Mormon Church released a statement praising the Respect for Marriage Act’s approach on religious protections. Romney quickly announced his support.

As the group prepared for a 3:30 p.m. procedural vote in mid-November, they felt increasingly confident about having the 10 Republicans they needed to break the filibuster.

Retiring Sens. Roy Blunt (R-Mo.) and Richard Burr (R-N.C.), who’ve signed on frequently to past bipartisan compromises, backed the bill. Sens. Shelley Moore Capito (R-W.Va.) and Lisa Murkowski (R-Alaska), also bipartisan-minded senators, threw their support behind it as well. Sens. Todd C. Young (R-Ind.), fresh off his reelection, and Joni Ernst (R-Iowa), who are both young for the Senate at 50 and 52 years old, also decided to vote for it. Along with Romney, Portman, Tillis and Collins, they would have had their 10.

But the group also gained support from two more Republicans who were more surprising allies to the effort. Sen. Dan Sullivan (Alaska), who supported altering the Alaska constitution to ban same-sex marriage less than a decade ago, voted to advance the bill. And Sen. Cynthia M. Lummis (Wyo.), who opposed same-sex marriage and was given a zero percent rating by the Human Rights Campaign gay rights group during her time in the House, joined the group of Republicans after she asked for an 11th-hour wording change to the bill’s religious liberty section that nearly delayed the vote as senators frantically cleared the new language with the coalition of groups supporting the bill.

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Lisa Murkowski, Dan Sullivan

Lummis faced pressure back home to vote no and explained her vote several times on Tuesday on the Senate floor.

“My days since the first cloture vote for the Respect for Marriage Act as amended have involved a painful exercise in accepting admonishment and fairly brutal self-soul-searching, entirely avoidable - I might add - had I simply chosen to vote no,” she said.

The Wyoming Republican Party criticized the conservative’s vote to let the bill go forward, and she also faced pressure from a conservative group of state legislators and a letter signed by more than 45 Wyoming pastors asking her to “reverse course” and vote no.

“These are turbulent times for our nation,” Lummis said, adding that she hoped her vote would make the country less divided and more tolerant on Tuesday. “For the sake of our nation today and its survival, we do well by taking this step.”

Three other Republican senators who expressed interest in supporting the bill ultimately backed off after facing political pressure or deciding the final bill did not do enough to protect religious liberty, according to two people familiar with the negotiations.

On Tuesday evening, the members of the group of five were in a celebratory mood. Sinema shook Young’s hand while Tillis slapped his shoulders, and Sinema later gave Lummis a hug.

Baldwin, who said earlier on Tuesday that she would be “nervous” until the vote closed, fielded a hug from Schumer, a fist bump from Sen. Sherrod Brown (D-Ohio) and a high five from Sen. Gary Peters (D-Mich.). When the 12 Republicans again all voted yes, a look of relief passed over her face.

Portman, who is retiring and said it was “impossible” for him to imagine such a bill passing the Senate just 10 years ago, called his son, who is in a same-sex marriage, to tell him the news. Portman said his son, who never “pressures” him to vote on anything, appreciated “the significance of it not just for him but for the country and other couples.”

“It was an important moment for our family as well,” he added.

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