The Daily - How Roe’s Demise Could Safeguard Gay Marriage

Episode Date: July 26, 2022

After Roe v. Wade was overturned, Democrats introduced a bill to prevent the right to gay marriage from meeting the same fate as the right to abortion.The bill was expected to go nowhere, but it has won more and more Republican support and now seems to have a narrow path to enactment.Guest: Annie Karni, a congressional correspondent for The New York Times.Want more from The Daily? For one big idea on the news each week from our team, subscribe to our newsletter. Background reading: Larger-than-expected Republican support in the House for legislation to codify marriage equality caught both parties off guard.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. After Roe v. Wade was overturned, Democrats introduced a bill to try to prevent gay marriage from meeting the same fate as abortion. It was expected to go nowhere. But over the past few days, the bill has won more and more Republican support

and improbably could now become law. My colleague, Annie Carney, with the story of how that happened. It's Tuesday, July 26th. Annie, what's the story behind this same-sex marriage bill? What exactly are its origins? So this all started after the Supreme Court's decision to overturn Roe v. Wade. No one can say they didn't know this was coming.

Now the question is, for the Democrats, what are you going to do about it? decision to overturn Roe v. Wade. No one can say they didn't know this was coming. Now the question is, for the Democrats, what are you going to do about it? What are you going to do next? There was tremendous frustration among progressives and Democrats at the decision. So I received a text message from Joe Biden's campaign yesterday saying that the Supreme Court had overturned Roe v. Wade and that it was my responsibility to then rush $15 to the Democratic National Party. But also at the response from Democrats.

They have had multiple opportunities to codify Roe into law. House Speaker Nancy Pelosi's first reaction was not a detailed plan to respond to something we knew was coming. It was to read a poem. Everyone had been expecting this ruling for weeks, and there seemed to be very little response plan. Yes, the Republicans are dangerous, and my party needs to act like it. It's just like having some firefighters come to your house, and they got all the equipment, and the fire chief says, you know what, we can't come in yet because we got to wait for a few more firefighters, even though they have all the tools at their disposal to put out the fire. So in this moment, they are looking for ways to show they're still working, to show they're

trying to protect rights, to paint Republicans as the party of extremists. And at the same time, one new piece of information that came out when the Supreme Court issued their ruling was this opinion by Justice Thomas, where he kind of laid out a roadmap of what this conservative-leaning court wants to do. And he said that the next targets that they would like to look at are same-sex marriage and the right to contraception, that these things could also be revisited. So suddenly, Democrats, who are under a lot of pressure from their base to look like they're not behind the ball, but they're ahead of the ball, have two items on the agenda that they can respond to ahead of time

rather than responding to after it's already too late. Right. same-sex marriage and contraception. Right. So based on the roadmap that Thomas lays out in his opinion on Roe, Democrats introduced two bills. One would safeguard contraception and the other would safeguard same-sex marriage. And Democrats know that passing either of these bills would be an uphill battle, but they also think there's no downside to bringing them up for a vote. First of all, they have to show their base that they are

trying to do anything. This is an election year and having a floor vote, even if it's just a show vote, gives Democrats a chance to draw this stark contrast with Republicans on these social issues. So even if the bills fail, Democrats have put Republicans on the record and they can campaign on that. And if these bills somehow pass, then Democrats have done something that's rarer and rarer these days, which is gotten something major passed in this Congress

that they can send Biden to sign and he can claim it as a win, which he is also desperate for. So last week, Democrats moved on both these issues, on the contraception bill and on the same-sex marriage bill. And the contraception bill, as Democrats expected, drew very little support from Republicans. It passed basically along party lines in the House. support from Republicans. It passed basically along party lines in the House. There's no discussion right now of having a Senate vote on it or moving it along. This basically amounted to a House show vote that is dead on arrival and not moving forward down the process.

Got it. Okay. And what about the same-sex marriage bill? Same-sex marriage had a bit of a different path. This bill is called the Respect for Marriage Act, and basically it's designed to solidify a protection that exists for now, which is the right for same-sex couples to be married regardless of what state they live in. This has been protected by the Constitution since 2015 when the Supreme Court established a federal protection of gay marriage under the 14th Amendment. This bill would not completely codify the rights that were laid out in that landmark ruling, but it's a first step. The bill also protects interracial marriages, but this has really been discussed as the same-sex marriage bill. So what happens to this bill? So the night before they brought that bill to the floor,

word started going around that House Republican leadership was not planning to whip no votes on the bill. Just explain that. Usually the whip, which is Representative Scalise, will send out a note to all House Republicans telling them which way to vote on a bill. It's the leadership position. And sometimes Kevin McCarthy, the minority leader, will be on the floor working

votes, telling people to vote no. There was no effort on this bill to get anyone to vote in a certain direction or to vote as a bloc. What I was told was that they recognized that several Republicans were going to be for it and they just didn't want to expend the energy on something that they weren't going to completely oppose and it was going to pass anyway. So they didn't whip on it. Can I start?

For what purpose does a gentleman from New York, Mr. Nadler, seek recognition? So the next day... I call up HR 8404, the Respect for Marriage Act, and ask for its immediate consideration in the House. The bill comes to the floor for a vote. Mr. Chairman, we're here because just three weeks ago, the Republican-controlled Supreme Court overturned Roe v. Wade, ripping away a woman's freedom over her most intimate health decisions. We are watching some floor speeches. These radical justices took a wrecking ball to precedent of the court and privacy in the Constitution. Democrats talking about the need to protect the nation and basic rights from extremist lawmakers and extremist Supreme Court.

We thought the Democrats were obsessed with President Trump, but Justice Thomas is a close second. This bill is simply the latest installment of the Democrats' campaign to delegitimize and attempt to intimidate the United States Supreme Court. We could have a very robust debate here in this body if we ever actually debated on the floor of the people's house, but we don't. Some Republicans talking about how they're going to oppose this because they didn't have a chance to read the bill. Now my colleagues on the other side of the aisle want to put forward a bill that is clearly political in nature. They don't want to talk about inflation. They don't want to talk about wide open borders. They don't want to talk

about rampant crime. Other reasons. So it's not really clear how much support it will get. The question is on the passage of the bill. This is a five-minute vote. When the vote begins, it goes fairly quickly. I inform the House that Mr. Garcia will vote yes on H.R. 8404. I inform the House that both Mr. Smucker and Mr. Raschenthaler vote no on H.R. 8404. You know, the Democrats control the House, so everyone expects the vote to pass. The question is, will it be just another show vote? Mr. Rice of South Carolina, I inform the House Mr. Rice will vote yay on H.R. 8404. Nay on H.R. 8404.

Yes on H.R. 8404. Yes on H.R. 8404. No on H.R. 8404. Yes on H.R. 8404. And we see a number in the Republican column. It's going up to double digits and it goes ultimately to 47 Republicans voting yes on a bill to protect same-sex marriage. Yays are 267, and the nays are 157. The bill is passed.

47 was a bigger number than a lot of people were expecting. A lot of Democrats watching were surprised. And we see some unusual names who ended up voting yes. Hmm. Like who? Liz Cheney voted yes. She, for a long time, was opposed to gay marriage, even though it put her in direct conflict with her father and with her sister, who is gay and married.

She voted for it. conflict with her father and with her sister who is gay and married, she voted for it. We saw Scott Perry, the chairman of the Freedom Caucus, vote for it. And then we saw it split leadership. We saw Kevin McCarthy and Scalise, the top two Republicans opposed. And we saw the number three House Republican, Elise Stefanik, who's a MAGA warrior, vote for it. So we really saw this issue get a bigger number of Republicans than expected to and divide the conference in very surprising ways. So Annie, how do you explain that level of Republican support, especially from members of Congress that we think of as pretty conservative? You're Perry's and you're Stefanik's. Why is there so much more support for gay marriage than, for example, the contraception

bill? How do you understand that? I think there's a few different things going on here. The biggest answer to the question is that same-sex marriage is so broadly popular, there's such a generational divide here, that being opposed to marriage equality is basically writing off a generation of voters who at this point believe this is how the world should work. So anyone who's interested in this vote breakdown and why it divided Republicans the way it did should look up those 47 Republicans who voted yes and look at how many of them up for reelection, how many of them actually have a competitive race on their hands. Because if you're up right now and you're running, being opposed to gay marriage, especially if you're trying to win over suburban moderate voters, is incredibly difficult. Also, a point that some Democrats

made to me is that being opposed to abortion in some of those districts is difficult because there's broad support for some abortion access. So given that they're already opposed to abortion, they don't necessarily feel like they can be opposed to every one of these rights and not alienate a lot of key voters, especially younger voters. The generational thing is key. Another thing is just the personal connection to this, which is why the gay rights movement and the movement for gay marriage has been so quickly successful. People have personal connections. We've seen people in elected office change their positions because a son or a daughter comes out to them, and it

changes their whole view of the issue. So just to summarize this, the reason why so many House Republicans voted for same-sex marriage and seem to be treating this bill differently than the other bills that Democrats have put forth since Roe v. Wade was revoked is political and personal. Political and personal, yes. And I would add one more thing, which is that this bill was really simple. It was four pages. So that's the third reason. Personal, political, and simple. So Annie, what's the reaction among Democrats after this vote?

Were they as surprised as it seems the public was? They were really encouraged and impressed by the 47. It was higher than what they had been expecting. And before the House took that vote, Schumer, who's the majority leader in the Senate and decides what bills come to the floor and get voted on, had been wishy-washy about whether he was ever going to bring this bill to a vote in the Senate. He was not talking about it as a legislative priority to get finished before the August recess. But after the vote, the next President, the next day he gets on the floor. Before I begin, I want to say something about the House Passed Respect for Marriage Act.

And he says, this legislation is so important. I want to bring this bill to the floor. We're going to take a vote on it and we're going to try and get 10 Republicans on board to actually get it passed. I spoke to Senator Baldwin, who is one of the leaders of this legislation in the Senate this morning. And she is talking to Republicans to see where the support is. And he puts a senator, Senator Tammy Baldwin, who was the first gay elected senator when she was elected 10 years ago, puts her in charge of finding Republican support in the Senate to back the bill. And we're working to get the necessary

Senate Republican support to ensure it would pass. So suddenly this bill that, you know, looked like it was just a part of this broad effort of Democrats to show that they're fighting to draw a contrast with Republicans in election year. Suddenly, this bill looks like there's actually a narrow path where it could actually pass and become law, not just a messaging vote. We'll be right back. So Annie, what are this bill's chances in the Senate? Schumer is talking about it as if it has a real shot.

Is that realistic? It's looking like there's a narrow path where it could actually pass. Everything is harder in the Senate. The Democrats in the Senate have a 50-50 majority. To pass a bill, you need 60 votes

to move past a filibuster. So for every piece of legislation that Democrats want to pass, they filibuster. So for every piece of legislation that Democrats want to pass, they need 10 Republicans. And it looked like there was four. Susan Collins of Maine, Lisa Murkowski of Alaska, Rob Portman of Ohio.

These are like the classic moderates that Democrats can get on board. Tom Tillis of North Carolina was also part of that first four. And the question is, where are the next six? Then last week, a more surprising name said that he would vote for a bill to codify same-sex marriage. And that's Ron Johnson from Wisconsin, a real conservative, but he's in a very tough re-election battle in his state right now. So that confirms your earlier theory that when it comes to re-elections, Republicans...

Yes. If you have a tough race on your hands, being opposed to same-sex marriage is a tough position to have. marriage is a tough position to have. Why is it not perhaps even easier for Democrats in the Senate and even in the House? We tend to think of the Senate as a place where there's more moderation than in the House, and 47 House Republicans voted for this bill. What is the argument against this bill among Senate Republicans who aren't on board? The argument against the bill was, why do we have to talk about this right now? This is a right that is protected by the Constitution. We heard Senator Romney say that, like, I don't see a need to talk about this. Basically, it was like, the house isn't burning right now.

We'll deal with that if it's burning. Marco Rubio dismissed it as a stupid waste of time. Republicans don't want to talk about this because they want to talk about gas prices, inflation. And we saw Rubio say that he said, I know a lot of gay people in Florida and they're mad about gas. So they're trying to claim that this whole conversation is a political ploy by Democrats to distract from Biden's failures. But Annie, just to speak to the point about the House isn't on fire, what do these Senate Republicans say to the fact that Justice Thomas wrote what he wrote, which was that gay marriage and contraceptions might be the next thing to be revoked by the Supreme Court? And what do they say to the reality that Roe didn't seem like it was under threat until suddenly

it was gone? I think they benefit from the fact that hallway interviews are very short, and there's not a real opportunity for a follow-up and a discussion where you point out the flaw in their argument. It's kind of like you give your soundbite, and then you're walking away, and that's the conversation. So they haven't really had to be pressed like that yet. Got it. really had to be pressed like that yet. Got it. So at this point, there are five Republican senators who have said they will support this gay marriage bill and 45 others, it sounds like,

who want to tell reporters like you to go away and stop asking them about it in the hallway. What is the plan by Democrats, by Senator Tammy Baldwin, who's overseeing this, to try to get five more, perhaps many more than five. So she's doing personal outreach. She has a list of about 10 that she's targeting. They won't give us the exact list because they want to keep all these conversations private. They don't want anyone to run away from them because it gets public. But she was texting with them over the weekend.

One thing I was told is that she was making a lot of assurances about the simplicity of the bill, like we were talking about before. This is really all it does. It's not complicated. There's not loopholes and other things attached in here that you won't like. And just underscoring to them that this is really straightforward. Annie, during the House vote, you said that Republican leaders refrained from telling their members how to vote, which seemed like a very powerful permission structure that resulted in 47 of them backing the bill. What are Senate Republican leaders telling their members? So far, kind of the same strategy. Mitch McConnell has not tipped his hand about

which way he's going to be voting. He was asked about it last week, and he said, I'll wait till Schumer brings up a bill to the floor to, you know, weigh in here. It's kind of a kick the can down the road strategy. This is not a reticent senator. McConnell, when he wants to, makes it. He's not a reticent senator, but he's also a senator who really has been explicit with reporters about the need for Republicans to appeal to suburban moderate voters. So he's made that case on other issues.

You know, I asked for an update today and they said no update on where he stands on the bill. He's waiting quietly to see, I think, how much support ends up coming out. So, Annie, given the current situation, what do the Democrats and the leaders that you talk to say is the likelihood that this bill is going to pass? You use that phrase, narrow path. Just how narrow is it at this point? I mean, I don't want to,

I want to give myself an out in case it all falls apart. So it's narrow, but they are confident. They are talking in terms of getting 10 or more. They're not there yet. But what I'm being told is that by Wednesday, they could be confident that they have 10 ready to go, which would mean they could take a closer vote on Thursday, which is a procedural vote before the vote. That would be very ambitious. There's other factors here. Senator Manchin is out with COVID in a 50-50 Senate. Every time one person is out, you can't take a big vote. You need every vote.

So there's other factors at play that mean that the idea that they're going to pass this this week is unlikely. But the people I'm talking to seem confident that they could have their list of 10 that they feel confident about. Got it. So accepting that this is not yet a done deal, that it could still fall apart, let's talk about what it would mean if this bill, somewhat improbably, actually becomes law, starting with what it will mean for the gay community. It might not seem so on the face of it because really it's reinforcing a right that currently exists. So, you know, you wouldn't see gay people running to get married after this passes. Because they already have that right, right? They have that right right now. But instead of being entirely reliant on a Supreme Court ruling to create that right to get married on a federal level,

if this passes, Congress is showing that it is committed to creating some protections for gay marriage through law. And that's a big deal, especially at a time when other rights for the gay community are under assault at the state level. And in the end, for everyone on the left, especially women, I have to imagine this is a complicated moment. They may celebrate the fact that gay marriage is about to be enshrined in federal law. They might see it as a victory. someone who cares about the right to an abortion, to see that the end of Roe v. Wade has fueled an effort to safeguard an entirely different right, which is gay marriage, rather than fuel the fight to safeguard abortion or the issues related to it, like contraception, which, as you've just told us,

has failed to really go anywhere. I think that's right. If this passes, it is a complicated moment for many women who are seeing the enshrinement of a federal law that will protect a right, but it's only happening as a reaction to this post-Roe universe that is now the dark reality for many Democrats. that is now the dark reality for many Democrats. But same-sex marriage and abortion remain very, very different issues. Same-sex marriage over the past decade has skyrocketed to national acceptance.

You see it among voters. You see it among the Republicans supporting Congress where they can't oppose it. And abortion still to this day remains a much more polarizing issue, maybe the most polarizing social issue in our country. And it just still is. Congress has tried and failed to pass a bill that would, you know, give legal protections to abortion and it has never worked. So at the end of the day, it's a bittersweet moment, I think, for women who see a group gaining a right in the wake of a very big loss. Annie, thank you very much. We appreciate it. Thank you. We'll be right back. Here's what else you need to know today. I am among you because the first step of this penitential pilgrimage is to renew my request for forgiveness. On Monday, Pope Francis offered a sweeping apology for the Catholic Church's conduct in Canada, where for decades it operated residential schools for Indigenous people that inflicted physical, sexual and mental abuse, erased languages, and used Christianity as a weapon to break native culture.

It's estimated that thousands of indigenous children died in the church-run system. that thousands of indigenous children died in the church-run system. The Pope, while meeting with indigenous people on their land, called the church's abuses a, quote, disastrous error. I've waited 50 years for this apology, and finally today I've heard it. And the Times reports that Ukrainian forces are preparing for one of the most ambitious and significant military operations since Russia began its invasion, an effort to retake the city of Kherson. Kherson, the first Ukrainian city to fall to Russia,

has operated as a launching pad for Russian attacks throughout the country. Ukrainian leaders believe that winning back control of it could be a turning point in the war and a major boost to Ukrainian morale. Today's episode was produced by Asta Chaturvedi, Will Reed, Sydney Harper, and Diana Nguyen. It was edited by M.J. Davis-Lynn, contains original music by Dan Powell and Marion Lozano, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Lansford of Wonderland. That's it for The Daily.

I'm Michael Barbaro. See you tomorrow.