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The Same-Sex Marriage Bill Is a Half-Measure. It’s Also the Best That Can Be Hoped For Right Now

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A 21-year-old Hillary Diane Rodham rose in her graduation robes ready to make history that May 1969 morning at Wellesley College, but first she was going to respond to the Republican Senator who had spoken immediately before her. As the first Wellesley student to be afforded the privilege to address her graduating class, she felt a duty to offer a rejoinder to his message of pragmatism.

“We’ve had lots of empathy; we’ve had lots of sympathy, but we feel that for too long our leaders have viewed politics as the art of the possible,” the future Hillary Clinton said in a flat, Midwestern accent. “And the challenge now is to practice politics as the art of making what appears to be impossible possible.”

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The affect and the tone are as equally unrecognizable in the modern mythology of the future Secretary of State, Senator, and First Lady. But that practical embrace of the art of the possible would become a hallmark of her political career—and one that her fellow Democrats this week adopted as the Senate cleared its first procedural vote on a bill intended to protect some of the marriage rights now afforded by same-sex and interracial couples, in case the Supreme Court tries to strip them away.

The 50-member Senate Democratic caucus, with the backing of 12 Republicans, moved on Wednesday to pass a modified version of the Respect for Marriage Act that the House embraced back in June. Final passage of the bill in the Senate could come as soon as Friday.

Still, lawmakers are stopping well short of codifying the 2015 Supreme Court decision that extended marriage rights to all couples. Instead, Congress is moving quickly to scrap the 1996 Defense of Marriage Act, which would snap back into effect should the Supreme Court reverse its 2015 Obergefell ruling. In its place, the Respect for Marriage Act orders states to respect marriage licenses, adoption orders, and divorce decrees issued in other states. It also gives a buffer to earlier rulings that allowed interracial couples to wed and same-sex couples to do, well, whatever they fancied behind the closed doors of their bedrooms.

In other words, Alabama would have to honor a marriage that takes place in New York, but Alabama itself would not have to issue that same-sex or interracial couple a marriage license of their own. At least 24 other states would fit into this category. And at a national level, the Respect for Marriage Act would shelve the more than 1,000 federal benefits that the Defense of Marriage Act denied same-sex couples, such as Social Security survivor benefits and spousal citizenship applications.

Republicans wrested concessions from Democrats in exchange for the Senate votes, and Democratic negotiators decided the barest of guaranteed protections was better than reverting to none at all should Obergefell fall.

It’s no accident the Senate is finally moving on this in the wake of the Nov. 8 elections that tipped control of the House to Republicans come January. The window for Democrats in both chambers to get much of anything done is quickly narrowing. The fact that Democrats prioritized this says as much about their fears as their political coalition and donors.

But fears of overreach forced Senate Democrats to cede even more ground, including provisions that addressed some Republicans’ fears that the measure could encroach on some individuals’ and groups’ religious liberties. The proposal also does not regulate businesses, meaning shop owners could deny same-sex couples the use of wedding venues, sale of cakes, or leasing of apartments. By the time the concessions were finalized, even leaders of the Mormon faith had endorsed this iteration of the art of the possible.

Washington has been laying the groundwork for this outcome since the summer, after the Supreme Court rolled back a half-century of protections for abortion rights provided in the Roe v. Wade ruling. Although the majority wrote that the ruling in the Dobbs decision was limited to abortion rights, a minority opinion written by Clarence Thomas suggested that the rejection of the framework in Roe meant other rulings—such as same-sex and interracial marriage, contraception, and privacy—could also be revisited.

Democrats knew they had to act fast. Although a surprising 47 Republicans supported the House version, there’s no guarantee that a Republican-led chamber next year would allow such a bill to even come to the floor, and there’s no telling what the White House will look like come 2025. House GOP leadership didn’t whip votes against the bill, but that was because they knew it would pass in the Democratic-controlled chamber with or without them. Democrats took a cold-eye look at what was possible and went with what they could get now rather than risk a change of heart in just a few weeks.

Washington is a city of compromise like that. Progressives didn’t love the final incarnation of Obamacare, but went with what could get across the finish line. Conservatives had issues with the Trump- and Bush-era tax cuts, but embraced the win. Democrats didn’t fall in love with Joe Biden as their nominee, but they made a strategic bet he could beat Donald Trump. These compromises are part of the deal, and the compromise on marriage is merely the latest chapter. So as much as the young, bright-eyed Hillary Rodham might have clamored for a better version of politics than the art of the possible, an older, wiser Hillary Clinton would recognize the merits of this week’s deal. It’s simply what the grown-ups have to do.

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