Supreme Court Skepticism Leads Dems To Push Codifying Same-Sex Marriage : The NPR Politics Podcast After June's ruling in Dobbs v. Jackson Women's Health Organization overturned the constitutional right to an abortion established in Roe v. Wade, Democrats in Congress are trying to enshrine other protections into federal law in case they are subject to similar Supreme Court action. A bill seeking to protect the right to same-sex marriage has passed the House with bipartisan support, but faces a challenge in the evenly divided Senate.

This episode: political correspondent Susan Davis, congressional correspondent Kelsey Snell, and political correspondent Danielle Kurtzleben.

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Supreme Court Skepticism Leads Dems To Push Codifying Same-Sex Marriage

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CARRIE AND CARMEN: Hello.

CARRIE: This is Carrie (ph)...

CARMEN: ...And Carmen (ph)...

CARRIE: ...Calling from Sergeant Bluff, Iowa.

CARMEN: We're here with over 15,000 bicycling enthusiasts ready to start the Register's Annual Great Bike Ride Across Iowa...

SUSAN DAVIS, HOST:

Ah.

CARMEN: ...Or RAGBRAI...

DANIELLE KURTZLEBEN, BYLINE: Yes.

CARMEN: ...A historic 400-plus-mile ride from one side of the state to the other over one week.

CARRIE: This podcast was recorded at...

DAVIS: 1:55 p.m. on Tuesday, July 26.

CARRIE: Things may have changed by the time you hear this, but we will likely still be cycling across the state of Iowa and enjoying Midwestern hospitality, craft beer, sweet corn and pie along the way.

CARRIE AND CARMEN: OK, here's the show.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

DAVIS: Oh, have a great ride, ladies.

KELSEY SNELL, BYLINE: Say hi to Scott Horsley for us.

KURTZLEBEN: Oh, I'm so jealous.

DAVIS: And, Danielle, you've done it.

KURTZLEBEN: Yes.

DAVIS: You're a RAGBRAI alum yourself and a native Iowan.

KURTZLEBEN: Yes, I have done it three times.

DAVIS: Brag.

KURTZLEBEN: But I - it's not a brag to everyone. But I do encourage everyone to follow Scott Horsley on Twitter this week for some super wholesome Iowa content.

DAVIS: And some good pie content...

KURTZLEBEN: That's true.

DAVIS: ...If memory serves. Hey there. It's the NPR POLITICS PODCAST. I'm Susan Davis. I cover politics.

SNELL: I'm Kelsey Snell. I cover Congress.

KURTZLEBEN: And I'm Danielle Kurtzleben. I also cover politics.

DAVIS: When the Supreme Court overturned Roe v. Wade last month, Democrats said other rights protecting personal freedoms could be next. Why? - because conservative Justice Clarence Thomas said as much. In his concurring opinion, he wrote, the same legal basis that overturn Roe could be used to challenge court precedents protecting things like same-sex marriage and access to contraceptives. Now, Republicans say there's no threat to those rights, but Democrats aren't exactly in the mood to take their word for it. So last week, House Democrats passed legislation to create a federal law protecting same-sex marriage, which is currently protected by the 2015 landmark ruling in Obergefell v. Hodges. So, Kelsey, get us up to speed here. What exactly does the House bill do?

SNELL: The House bill is actually fairly simple. It really does just codify the protections in Obergefell, and it also codifies protections for interracial marriage. It is a fairly simple piece of legislation that Democrats and the Republicans who voted for it say, just make sure that, you know, protections that people experience right now would remain.

DAVIS: So this bill - it passed with bipartisan support in the House. All Democrats voted for it, and 47 Republicans did as well. You know, in today's climate, that's pretty much an achievement in and of itself.

SNELL: Huge, really. I mean, the thing that was really interesting about this to me is that it was a surprise that there were so many Republicans who voted for this. This was a huge vote of bipartisanship and something that, you know, I think Democrats - and we've been talking about this a lot. Democrats have been doing these messaging bills.

DAVIS: Yeah.

SNELL: They are putting things up for votes that they want to tell voters that they've done. They want to let people know what they stand for. This was supposed to be one of those bills, but then a lot of Republicans agreed with them. The question now is if that is replicable in the Senate.

DAVIS: Yeah. OK. Can we talk about the vote a little bit? Because I think there was an interesting mix of Republicans that voted for this. To me, one of the most interesting things was you had all four of the Republicans from the Utah delegation vote yes. You had conservatives like Scott Perry, who's a Republican from Pennsylvania, who's, like, a super hardcore Trump ally, vote for it. I mean, it really did suggest that same-sex marriage is pretty mainstream now, even to people who consider themselves conservatives.

SNELL: Yeah. I will say that there are some Republicans - we heard stories about, you know, Republicans who have people in their own families in same-sex relationships who voted against this bill. But, you know, by and large, we did see a greater turnout from Republicans than we have seen on this issue in a long time. One thing that I think is really interesting that a Democrat pointed out to me is there haven't been test votes on this in a really long time.

DAVIS: Yeah.

SNELL: So it's not a situation where we've watched Congress evolve or not evolve along with the public. It's just something where there was a check-in before the decision from the Supreme Court and now this moment where we're seeing a waypoint in how much it's changed.

DAVIS: Yeah.

KURTZLEBEN: I want to ask you guys something as Congress reporters, in contrast to this same-sex marriage vote because, Kelsey, you mentioned there hasn't been a test vote on this in some time. Well, as far as I know, there hasn't been a broad vote on contraception in some time as well. And there was also a vote in the House on contraception. How did that differ from this vote?

SNELL: Well, the House vote on contraception got only eight Republican votes. So eight versus 47 - it's a huge, huge difference, though, Sue, as you were pointing out, the details of that contraceptive bill - it's just different.

DAVIS: Yeah. I mean, the politics are different. I think the contraceptive bill can get tied up in the abortion rights debate because access to contraception can also involve access to medication that can be used to induce abortion. So I think Republicans, it's much more easier to draw sort of social and political lines on that. But - and, Danielle, you've done some reporting on this, too. I mean, even more Americans now say they support same-sex marriage rights. I mean, this is majorities of Democrats, independents and Republicans, even, now say that they're comfortable with this. So it doesn't maybe seem as shocking that there is bipartisan support for something that, you know, 70% of the country is comfortable with.

KURTZLEBEN: Right. Yeah. And one thing that I took away from this vote on the same-sex marriage bill - I mean, yes, many, many Americans take contraceptive pills. We should say that many Americans have had abortions. But also, there is just a big difference between public opinion on same-sex marriage and public opinion on, say, abortions because it's not just that 7 in 10 Americans approve of same-sex marriage, although that demands attention. It's also that, A, as of recently, a slim majority, but a majority, of Republicans also support same-sex marriage. But more importantly to me is the momentum of that - right? - because when you look at public opinion on same-sex marriage, it is just uphill. Like, over the past few decades, it's just straight up. More and more people increasingly approve of it. And it seems like if you're a Republican, voting against same-sex marriage just seems like a way to remain - keep the party stuck in the past.

Whereas, if you look at abortion, it is true that a majority of Americans, roughly 6 in 10, believe that abortion should be legal in all or most cases. That's entirely true. But first of all, it's not a majority of Republicans. And second of all, public opinion on abortion has been much more stable than public opinion on same-sex marriage. So the momentum just isn't quite in that favor. And I imagine if you're a Republican, especially in a safe Republican district, which their districts increasingly are, you just have no inclination to vote for that.

DAVIS: It is really remarkable to think about how much the public opinion on same-sex marriage has shifted. I mean, I always go back to the idea that Barack Obama, in 2008, opposed gay marriage, right? Like, the - most of the Democratic field for president in 2008 was on that side of the issue. And not only, like, in the country but politically - like, it has just become a consensus issue faster than any other issue I can think of in, like, modern American culture.

KURTZLEBEN: Right. And I would also add that there are many, many reasons, which we will get to, as to how the public tide turned on same-sex marriage. But I imagine, to your point, that one of the big reasons why many people perhaps felt the permission to change their opinion is they saw politicians they admired, that they agreed with, like Barack Obama, change their opinions. I mean, seeing someone at that level change how they feel about it probably allows plenty of other people to do so as well.

DAVIS: All right. Let's take a quick break. And when we get back, we'll talk about where this legislation might go from here.

And we're back. And, Kelsey, I think it's worth talking about one of the interesting political dynamics about this legislation because you mentioned that Democrats have had this strategy where they like to put up these symbolic message votes, especially on divisive issues, to try to jam Republicans. Republicans do this when they're in the majority. It's a very routine act in Capitol Hill. But when this passed the House with such bipartisan support, I think it kind of took the Senate by surprise. They were not...

SNELL: Oh, it absolutely took them by surprise.

DAVIS: Right.

SNELL: Most Democrats would admit it and have admitted that they were not prepared for that. They also are still not really prepared for what to do.

DAVIS: Yeah. So let's talk about this. I mean, they were not prepared to have this on the agenda. They didn't plan to vote on it before they left town. But when it passed the House with this margin, it also raised the question, like, hey, maybe there is enough Senate Republican support to pass this, which would actually have the result of a symbolic message vote creating a federal law that protects same-sex marriage.

SNELL: Yeah. The only hurdle now is getting from the five Republicans in the Senate who say that they support it to the necessary 10. And some of that has been a very challenging process for the people who are sponsoring that bill. That's Tammy Baldwin, Democrat from Wisconsin, and Rob Portman, Republican from Ohio. We should say, Tammy Baldwin is the first openly gay senator, and she has been really working hard to try to change people's minds and have them come over to support this.

TAMMY BALDWIN: I think, ultimately, it boils down to whether they agreed with the Supreme Court decision in Obergefell. But those that do should be a yes on this measure.

SNELL: But so far, that gulf between five and 10 has actually been really, really hard to close, in part because it's an election year.

DAVIS: Yeah.

SNELL: And Republicans don't want to hand a win to Democrats right now. But also in part because of the timing of this in an election year - going into August recess, which is a time, as you know, when all members are out there campaigning. But not every primary is over yet.

DAVIS: Yeah.

SNELL: So there are some Republicans out there who are still fighting to stay on the ballot or get back on the ballot for reelection. So this might not be the moment in which Republicans want to vote for it.

DAVIS: Danielle, that's a good point, though, because while this is still an issue that a majority of the country is comfortable with, Republican base politics don't necessarily lend itself to being supportive of same-sex marriage. The Republican Party platform certainly does not embrace same-sex marriage. So for a lot of Republicans - and we should note, a majority of House Republicans still did vote against this legislation. For a lot of Republicans, at least in elected office, this is still a tough vote to take.

KURTZLEBEN: Right. Yeah. And while, as I said earlier, polling has recently shown that a slim majority of Republicans have crossed over into believing that, yes, same-sex marriages should be considered legally valid, it's also true that some of these Republicans may simply be making the calculation that this isn't a deal-breaker among the people that vote for me, right?

DAVIS: Yeah.

KURTZLEBEN: ...That there are other things - like, for example, I'm sure they would tell you inflation this year or transgender people playing sports on a particular team. Like, any number of things that are...

DAVIS: Gun issues - anything like that.

KURTZLEBEN: Yes.

DAVIS: Yeah.

KURTZLEBEN: Yes. Any number of things are just much louder, much bigger deal on the Republican side than the Democratic side.

SNELL: I will say, though, the fact that Senate Majority Leader Chuck Schumer isn't just scheduling a vote on this, regardless of, you know, where the vote count is, says to me that he thinks they might actually get to 10 Republicans.

DAVIS: When all you want to do is a symbolic vote, you just schedule the vote and force everyone to go on record, and then you move on. Like, it seems like they're giving Tammy Baldwin and Rob Portman, the Republican co-sponsor, some breathing room to try to build a coalition.

SNELL: And beyond that, I have heard from Democrats that they don't feel like they have to do it necessarily right now or even in September. They could wait until after the election and do this at a time when there's not as much at stake, and this could actually become law.

DAVIS: If you're actually trying to get an outcome...

SNELL: Yeah.

DAVIS: You could take the pressure off Republicans to vote before the election, do it in the lame duck. But can Democrats help themselves?

SNELL: Right. Can they help themselves and wait that long to, you know, give up the political issue for themselves?

KURTZLEBEN: Do we expect any sort of vote, politically motivated or otherwise, on that contraception bill in the Senate as well?

SNELL: We have not heard yet. We do know that Democrats have some appetite for further political votes, but they have a really full schedule on things that they could actually get into law - things like this CHIPS Act that they're working on this week, which has to do with technology and, in some ways, competing with China. There's also this reconciliation bill that has to do with Obamacare protections and making sure that those are extended. They also have to fund the federal government at some point in time.

DAVIS: There's that little thing.

KURTZLEBEN: Yeah.

SNELL: That little thing that they always have to do - they kind of have to do that pretty soon.

DAVIS: All right. Well, I think we'll leave it there for today, but we'll be back in your feeds tomorrow. Susan Davis, I cover politics.

SNELL: I'm Kelsey Snell. I cover Congress.

KURTZLEBEN: And I'm Danielle Kurtzleben. I also cover politics.

DAVIS: And thanks for listening to the NPR POLITICS PODCAST.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

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