Over the summer, Democrats debated in private how to deal with the jolt that had been sent to more than 1 million U.S. households with same-sex couples.
The Supreme Court had just handed down its rulings on abortion rights, and the justice, Clarence Thomas, publicly weighed in his concurring opinion on whether the court’s 2015 ruling on same-sex marriage — which he said was based on “legal fiction” — should be next. .
According to many aides on Capitol Hill, the top staffer for New York Rep. Jerry Nadler, chairman of the House of Representatives Committee, arrived at the office of the Wisconsin Sen. Tammy Baldwin, the first openly gay senator and longtime LGBTQ rights advocate.
Could the Supreme Court approve a gay rights bill to send a political message before the midterm elections? Nadler’s staff asked. Or was there a chance that the Democrats could win enough Republican support for a bill that would guarantee same-sex marriage?
According to multiple aides familiar with the account, Baldwin had already told his staff that he thought such a bill was possible.
“Let’s get this right,” replied Baldwin’s chief of staff, Ken Reidy, kicking off months of debate on what could be the biggest civil rights deal to pass Congress in years.
The House is expected to finalize the Respect for Marriage Act sometime this week, approving the Senate version that passed last week by a vote of 61-35. The first House vote on the proposal drew 47 Republican votes. President Joe Biden could sign the bill into law within days.
Douglas Laycock, a leading religious freedom expert who supports the law, said he never thought it would happen in his lifetime.
“This is an important starting point between gay rights groups and civil libertarian groups,” said Laycock, a law professor at the University of Virginia. “Both sides have killed all attempts at compromise.”
Senator Kyrtsen Sinema (D-AZ) speaking at a news conference after the Senate passed the Marriage Equality Act at the Capitol Building on Nov. 29, 2022 in Washington, DC. In a 61-36 vote, the measure would provide union recognition and protections for married couples.
Laying down a ‘yellow brick road’
Observers were quick to credit the bill’s success — drawing Republicans as well as Democrats — to changing public opinion. In fact, according to a Gallup poll in May, 71% of Americans say they support legalizing same-sex marriage. That’s more than 40 points higher than in 1996, when the question was first asked.
But the people involved in the passing of this bill also said that it was the result of the hard-fought negotiations that are being held.
“This shows that there was a two-way street for LGBTQ freedom and religious freedom,” said Tim Schultz, president of the 1st Amendment Partnership, which worked on the bill on behalf of religious groups.
“Legislators need to find a way forward on these issues. And I hope this breaks the ice on major issues,” he added.
To understand this development, ABC News interviewed Hill staff and representatives, several of whom spoke on the condition of anonymity to reveal how such a bill came to life.
According to those involved, much of the disruption took place behind closed doors, including secret phone calls with wealthy GOP donors who demanded that Congress address the issue.
The biggest concern, some Republicans said, is that any Supreme Court action could alienate independent and moderate voters ahead of the 2024 election — just as the abortion rights debate has hurt Republicans in the interim.
There were also unexpected alliances. The Church of Jesus Christ of Latter-day Saints, which considers same-sex relationships against God’s commandments, came out as the first architect of the bill and worked with Arizona Sen. Kyrsten Sinema, the first obvious member of the chamber, grew up. up Mormon.
Under the church-sponsored amendment, the Respect for Marriage Act guaranteed that religious groups would not lose their tax-exempt status or receive government benefits because of their refusal to marry.
In exchange, the Mormon church publicly endorsed the proposal as protecting “religious freedom,” paving the way for a dozen Senate Republicans to jump behind it.
“We knew who we could reach,” said one GOP representative. “But we wanted to put a yellow brick road that they could walk on.”
Senator Thom Tillis (R-NC) arrives as Senate Republicans meet in the leadership election at the Capitol in Washington, D.C., on Nov. 16, 2022.
What the marriage bill does and doesn’t do
The Respect for Marriage Act is intended as a form of insurance should the Supreme Court overturn its landmark Obergefell v. Hodges, who wants all states to legalize same-sex marriage.
If this decision is returned by the court, as stated by Justice Thomas, the law Respect for Marriage Act will start for all the states to recognize the unions that are done legally elsewhere in the country.
The bill is narrow in scope, disappointing many progressives. It would not force states to issue same-sex marriage licenses, for example, as is now required under the Obergefell ruling.
The bill also does not say that businesses or religious organizations can refuse to work with same-sex couples, granting freedom of worship or speech. Such a case is being considered this week in the Supreme Court.
However, LGBTQ representatives who worked on the bill said the agreement is a historic step that would provide legal certainty to the 707 families in the US with same-sex couples.
“It’s not easy to sit down and have a conversation. I would say there’s uncertainty on both sides,” said Shannon Minter, legal director of the National Center for Lesbian Rights, who was involved in the discussion on the bill.
“But I think by the end of the program, there was recognition that people were communicating in that good faith,” Minter said.
Congressional aides said the legislation was carefully negotiated by Democratic Sens. Baldwin and Cinema along with three Republicans: Susan Collins of Maine, who was known to cross party lines; Rob Portman of Ohio, who a decade ago changed his mind on same-sex marriage after learning his son was gay; and Thom Tillis of North Carolina, who had supported this year’s bipartisan package on gun safety.
Several people said the onus fell on Tillis to convince enough Republicans to vote in favor of the bill so no one person had to be the final vote. Under Senate rules, 60 votes are needed to pass most laws.
Other important moments include the decision by Democrats to hold off on voting in the Senate until the midterm elections are resolved and the decision by Senate Republican leader Mitch McConnell and other prominent GOP senators not to speak out against the bill even though they voted against it. .
The Roman Catholic Church and some civil society groups have publicly criticized the law, including Sens. Mike Lee of Utah and James Lankford of Oklahoma, who argued that it would impose a national law on same-sex marriage that would expose churches and organizations to lawsuits.
But after the Church of Jesus Christ and several religious freedom experts publicly signed on, a dozen Senate Republicans joined in support and pledged its passage.
In the end, both LGBTQ rights groups and religious freedom advocates claimed victory – as Sinema did at a press conference celebrating the passage of the bill in the Senate.
“What could be more American than comparing these two issues?” he asked.
ABC News’ Allison Pecorin and Trish Turner contributed this report.
