Congress May Actually Pass Bill Codifying Same-Sex Marriage—But Not Abortion

When the Supreme Court overturned Roe v. Wade, legal experts and activists warned that other privacy rights like marriage equality were at risk. Justice Clarence Thomas agreed, practically inviting anti-gay plaintiffs to bring a case before the court that would topple the right to same-sex marriage.

Democrats in Congress have been attempting to codify both abortion rights and marriage equality into federal law; the former looks like it will fail thanks to the Senate’s 60-vote threshold, while the latter increasingly appears to have a shot. (The Senate is split 50-50 so any legislation needs 10 Republican Senators to join.)

On Tuesday, the House passed the “Respect for Marriage Act” by a vote of 267 to 157, with 47 Republicans voting for it.

The bill now heads to the Senate, and CNN’s Manu Raju said Republicans told him the bill might get the 60 votes needed to pass. Sen. Thom Tillis (R-N.C.) said on Wednesday that he would “probably” vote for it. Sen. Rob Portman (R-Ohio) said that he would not only vote for the bill, but would co-sponsor it. (Portman’s son is gay, and Portman only supported marriage equality after his son came out in 2013.) Senate Minority Whip John Thune (R-S.D.) even told Raju: “There was pretty good bipartisan support in the House yesterday and I expect there’d probably be the same thing you’d see” in the Senate. Sens. Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine) have also expressed openness to the bill.

Other Senators are issuing nonsensical or cringey comments, which we’ll just leave right here:

For anyone confused about why 10 Republican Senators might support codifying marriage equality and not abortion rights, when both have overwhelming public support, it’s helpful to remember that marriage is an inherently conservative institution. In the U.S., married people with children qualify for more tax credits than single parents do.

Conservatives oppose proposals like paid family leave and universal child care based on the core belief that children should have two parents and one of them will stay home. Of course, they’d prefer the parents to be a cisgender man and woman with the woman staying home, but some Republicans support LGBTQ couples because they’re still propping up the institution of marriage. In their view, if the nuclear family “provides for itself,” not only is there little need for government spending on families, but they can demonize and harass single parents.

Meanwhile, abortion allows for independence. With legal abortion, women didn’t have to feel pressured into marrying someone because they got pregnant. Married women also terminate pregnancies and, alongside legal birth control, they’ve spent the last several decades able to choose if, when, and how to have children. This freedom has allowed women to enter the workforce in record numbers, and conservatives definitely don’t like that.

Despite conservatives being horny for marriage, this particular Supreme Court, however, would absolutely strike down marriage equality. Three of the Obergefell dissenters are still on the court (Thomas, plus Chief Justice John Roberts and Justice Samuel Alito), and Trump appointed three more staunch conservatives (Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). That’s six, and it only takes five votes to decide a case.

Congress is right to want to protect marriage equality before it’s on the chopping block. It would be nice if it had done the same for abortion.