Those fears could still come true, as other Republican senators declined in interviews Tuesday to say how they would vote, even as proponents of the bill maintain they’re optimistic.
Sen. Roy Blunt (R-Mo.), the retiring No. 4 GOP leader, said he’d decided but declined to say what his decision was. Retiring Sen. Pat Toomey (R-Pa.) said: “We’ll find out tomorrow.” And Sen. Joni Ernst (R-Iowa) suggested she was closer to a decision but wants to speak more with her staff.
“I’ve talked a little bit with folks on both sides of the issue,” Ernst said. “I’ve told everybody, I’m just keeping an open mind.”
Romney marks the fourth GOP senator to come out in support — albeit on the condition that the religious liberties are included — and Democrats need at least 10 Republicans to overcome a filibuster. Sen. Lisa Murkowski (R-Alaska) is also expected to support it.
Meanwhile, much of GOP senators’ focus this week has been on Wednesday’s leadership elections, where Senate Minority Leader Mitch McConnell will face a challenge from Sen. Rick Scott (R-Fla.) amid frustration over the 2022 election results.
While the House passed its same-sex marriage bill in July with support from nearly 50 House Republicans, the process in the Senate has taken more time amid GOP concerns about religious liberty. If the Senate does pass its version, the legislation will need another vote of approval from the House to head to President Joe Biden’s desk. Sens. Tammy Baldwin (D-Wis.), Susan Collins (R-Maine), Kyrsten Sinema (D-Ariz.), Rob Portman (R-Ohio) and Thom Tillis (R-N.C.) are leading the Senate push and released the text of their amendment to protect religious liberty on Monday.
Tillis said he’s in a “confident place” when asked if he thought they’d get the necessary GOP backing, citing recent endorsements of the legislation.
“Don’t take that away and say I think it’s in the bag, I mean we’ll be having discussions all the way up to the motion to proceed to vote,” Tillis said. “I think that if we’re successful in the Senate, that we will pick up votes on the House side.”
However, one Republican close to the talks, granted anonymity to speak frankly about the vote count, said while there were more than five GOP senators who would back the bill, there were “not many” more who would. That Republican was not fully confident the bill would overcome a filibuster.
The Senate bill would ensure that the federal government recognize a same-sex marriage if it was valid in the state it took place and couple moved to a state that does not recognize it. That would also apply to interracial marriage. It also would repeal the Defense of Marriage Act signed in 1996, which defined marriage as between one man and one woman under federal laws.
The bipartisan amendment clarifies that the bill would leave intact protections from a 1993 religious freedom law, which outlaws placing a substantial burden on people’s ability to exercise their religion. In addition, it states that nonprofit religious groups would not have to perform marriage services and that the bill would not impact their tax treatment.
Among the groups that announced support for the bill are the National Association of Manufacturers and the Church of Jesus Christ of Latter-Day Saints, which said it “includes appropriate religious freedom protections while respecting the law and preserving the rights of our LGBTQ brothers and sisters.”
While the Supreme Court enshrined same-sex marriage into law in 2015, proponents of the bill are concerned that precedent could eventually be overturned, citing Supreme Court Justice Clarence Thomas’ concurring opinion in the Dobbs decision that questioned other legal rights and pointed specifically to same-sex marriage.
During his floor remarks Tuesday, Schumer said that the “Senate can eliminate the risk of LGBTQ Americans having their rights curtailed if we act now to codify marriage protections into law.”
Wednesday’s vote to move forward on the bill marks the first time since 2013 that the chamber has taken up standalone legislation on LGBTQ rights.
Other GOP senators who played coy on the bill were Sens. Shelley Moore Capito of West Virginia, retiring Richard Burr of North Carolina and Bill Cassidy of Louisiana. McConnell also hasn’t indicated how he’d vote.
Republican opponents to protecting same-sex marriage rights argue that it’s unnecessary, saying the Supreme Court is unlikely to reverse its 2015 ruling. And despite the push by some GOP senators on Schumer to delay the vote, others criticized the timing.
“It doesn’t look like a way where voters would actually have a way to hold their senators accountable, if you’re going to wait until after the election and do it in the lame duck,” said Sen. John Cornyn (R-Texas). “It doesn’t look very good.”
The Senate is expected to proceed to the House-passed bill Wednesday and then replace it with the Senate version that includes the religious liberty amendment. The bill’s supporters want to see it pass rapidly. That, however, would require an agreement from all 100 senators to allow it to move more quickly.