By Kevin Bogardus - 03/30/13 10:00 AM EDT
Gay rights activists are working on a back-up plan to repeal the Defense of Marriage Act (DOMA) in case the law survives the Supreme Court.
The Respect for Marriage Act, which would repeal DOMA, has not been re-introduced in either the House or the Senate this Congress. But lobbyists are pushing to revive the bill in hopes of capitalizing on the outpouring of support for same-sex marriage in the Senate.
Lobbyists argue that passage of the Respect for Marriage Act is needed because the Supreme Court might issue a ruling that leaves much of DOMA intact.
Justices are only looking at Section 3 of the law, which defines marriage as being between a man and a woman. The provision denies federal benefits to married same-sex couples in nine states and the District of Columbia.
“There is no way today, from what was a really good week, to know how the Supreme Court is going to rule,” said Jo Deutsch, federal director for Freedom to Marry. “The Supreme Court could also look at other provisions in DOMA but a congressional repeal of DOMA would be complete.”
Lobbyists said that they have reached out to several of the senators who have come out in favor of same-sex marriage, including Republican Sen. Rob Portman (Ohio), to say thanks. They also plan to ask lawmakers who signed an amicus brief against DOMA to back the repeal bill.
“It's really a natural fit. They have signed onto a legal brief saying Section 3 of DOMA is unconstitutional,” Thompson said. “The Respect for Marriage Act would provide for a full legislative repeal of DOMA.”
That amicus brief to the Supreme Court was signed by 172 Democrats in the House and 40 in the Senate, and included lawmakers who oppose-same sex-marriage, such as Sen. Tom Carper (D-Del.).
“Like many Americans including Presidents Obama and Clinton, Sen. Carper’s views on this issue have evolved, and continue to evolve. He has not endorsed marriage equality at this time but he continues to give this issue a great deal of consideration,” said Emily Spain, a spokeswoman for Carper.
Spain noted that Carper has said that he would vote to repeal DOMA despite his opposition to same-sex marriage.
Lobbyists predicted the Respect for Marriage Act would have more supporters this session compared to last Congress, when it picked up 33 Senate and 161 House backers and was passed out of the Senate Judiciary Committee.
“I am personally well beyond my original goals for reintroduction already,” Deutsch said.
But despite their growing ranks, advocates for DOMA repeal are unlikely to find partners on the Republicans' side of the aisle.
Portman, the only Senate Republican who has backed gay marriage, is only for a partial repeal of DOMA and doesn’t plan to co-sponsor the Respect for Marriage Act, according to an aide.
A Portman aide said the Ohio senator believes DOMA's Section 3 should be repealed, but supports DOMA's Section 2, which he believes ensures that no state can impose its definition of marriage on another state.
Deutsch said she has not found a Republican senator to co-sponsor the repeal bill, leaving advocates short of the 60 votes need to overcome a potential filibuster.
Not everyone in the gay rights movement agrees with the legislative push.
Some advocates have argued that introducing the bill before the Supreme Court’s ruling could deter the justices from acting, and note that the legislation would have slim chances for passage in the Republican House.
“There's no reason for the legislation to be introduced until after the court has acted," said one gay rights advocate. "The legislation is not going to move anyway in this Republican Congress and its premature introduction would send the false message to the court that change is already happening and they do not have to be the ones to come up with the solution. That would be a mistake.”
Deutsch disagreed, saying lawmakers should begin work on the bill before the Supreme Court hands down its decision.
“It's not as if the bill is going to get passed and signed by the president before June,” Deutsch said. “We believe the strategy to have Congress move and act pre-June is a solid strategy.”
The timing of the bill’s introduction is still up in the air. On Capitol Hill, congressional aides for the lead sponsors — Sen. Dianne Feinstein (D-Calif.) and Rep. Jerrold Nadler (D-N.Y.) — said no decisions have been made.
“Senator Feinstein hasn’t yet announced when she will introduce [the Respect for Marriage Act] this session,” said Brian Weiss, a spokesman for Feinstein.
Weiss noted that Feinstein plans to continue reaching out to her Senate colleagues regarding the bill, particularly those who have recently said that they support same-sex marriage.
In the House, Nadler has not decided when to introduce the bill but is considering waiting until after the Supreme Court rules, which is expected in June.
"We are obviously considering waiting to craft a legislative response until the Supreme Court makes its decision in June. One reason that we are considering waiting is because we have to see what we have to deal with," said James Dakin Owens, a spokesman for Nadler. "That said, we are quite hopeful and confident that the Supreme Court will strike down Section 3 of DOMA."
Gay rights lobbyists said despite more support coming their way, the fight is far from over. They plan to keep pressure on lawmakers, working all the angles — from Capitol Hill and the courts to state legislatures and citizen referendums.
“We have to play every card. None of the cards are easy. But in the end, we will win the game,” Deutsch said.
Sam Baker contributed to this report.