Equality's Amazing Vanishing Act

This year in Maine, Maryland, Minnesota, and Washington, citizens will have a chance to vote on marriage equality. In the first three, the question posted to voters is phrased affirmatively—Should the state issue civil-marriage licenses to same-sex pairs?—while in Minnesota, voters will be asked whether marriage should be defined as being between a man and a woman.

When I reported on the pro-equality campaigns in Maine and Maryland, I outlined what LGBT advocates now take as givens in any ballot campaign:

  • The undecideds will vote against us. In the pre-ballot polling, the point spread between those supporting and those opposing marriage equality is meaningless. The percentage against plus the percentage that is undecided is the real numbers to watch.
  • We lose 2 to 5 percent of our support at the polls. Of those who tell pollsters they’re on our side, 2 to 5 percent change their mind when they face the ballot question, alone in the booth.
  • We don’t gain any support during the campaign. The campaign works as hard as it can simply to hold its supporters. Whatever the polling numbers were six months in advance of the ballot are roughly what we end up with on election day.

In Washington, the story begins in 1998, when the state legislature passed a law defining marriage as being between a man and a woman. One group the state on behalf of several plaintiffs, seeking equal marriage rights for same-sex couples; they lost at the state supreme court. Local activists then followed the model set by Equality California and got a domestic partnership law passed in 2007, which offered same-sex couples a limited number of rights and responsibilities. Two years later, in 2009, the legislature expanded domestic partnerships to be nearly equal to marriage, albeit without the M-word.

The National Organization for Marriage, the big-cheese national group opposing marriage equality, and its local affiliate challenged the strengthened domestic-partnership law at the ballot. Their argument: If domestic partnership was marriage in all but name, then same-sex couples shouldn’t have it, just as they shouldn’t have marriage. Voters upheld the law 53-47, a fairly resounding victory for a referendum on same-sex partnerships.

Of course, the goal remained full-marriage rights. Equal Rights Washington, the statewide LGBT organization, kept polling voters to assess when it was time to take the issue to the voters again. Zach Silk, campaign director for Washington United for Marriage, said that the LGBT groups now use sophisticated questioning techniques to weed out those who might express support for marriage equality to pollsters because of what he called the “social desirability factor,” but who will probably vote against it in the end. By late 2011, the group found that support was in the low 50s. “The public was on our side,” Silk explained. “That was incredibly important. We didn’t want to set ourselves up for failure. It wasn’t an overwhelming position, but we felt we had a shot.”

Unlike in Maine, where LGBT advocates kept up their education efforts even after they lost the ballot initiative, supporters of equality in Washington weren't able to go conduct the same ground operation. Nevertheless, they believed that the public discussion that had been kicked off during the domestic-partnership debate has kept the issue on the radar and continued to change minds, one by one, in dinner table conversations around the state. That last part is critical. As I’ve noted here before, people change their minds on marriage equality on an individual basis—from either knowing someone who is gay or lesbian and through conversations with advocates. It's important to realize that those who vote against marriage equality aren’t necessarily antagonistic to gay people; they’re just been too busy with their own lives to try to think the issue through. Faced with the question on the ballot, they vote for what’s most familiar.

Sensing the moment was right, a coalition of groups came together to form Washington United for Marriage, including Equal Rights Washington, unions, civic organizations, and national groups Freedom to Marry and the Human Rights Campaign. In February 2012, the groups succeeded in pressing the Washington legislature become the second to overturn its statute defining marriage as being between a man and a woman and replace it with a marriage law. As soon as the law passed, the coalition launched its ballot campaign, knowing that opponents would put it up for a vote, as indeed they did. The good news there is that the yes vote is for equality, and that it explicitly says that religious organizations can refuse to perform those marriages. Referendum 74 reads:

The legislature passed Engrossed Substitute Senate Bill 6239 concerning marriage for same-sex couples, modified domestic-partnership law, and religious freedom, and voters have filed a sufficient referendum petition on this bill.

This bill would allow same-sex couples to marry, preserve domestic partnerships only for seniors, and preserve the right of clergy or religious organizations to refuse to perform, recognize, or accommodate any marriage ceremony.

Should this bill be:

[ ] Approved

[ ] Rejected. 

When I talked with Silk last week, he was cautious about the numbers. Public polling has shown marriage advocates with between 52 and 56 percent support. “I think it’s fair to say you can knock off a couple percent” at the ballot box, Silk said, “so it’s a close race.” (You can see all the public polls on the issue here, which the campaign told me is a pretty accurate round-up, lacking only this more recent poll, which puts support at 55 percent.) While Washington is a blue state, Silk said, it has a lot of “older, socially conservative voters who are hard to get.” The majority of the state’s voters live in Kings County—Seattle and its environs—and tend to be socially liberal, but much of the rest of the state is rural, less well-off, and leans conservative.

As expected, NOM has at the last minute dumped money into television advertising, as you can see at Washington’s Public Disclosure Commission’s website, putting in roughly $1 million since mid-October; the Knights of Columbus has kicked in another $250,000. The ads are roughly the same ones that are being aired in Maine, Maryland, and Minnesota—because all the campaigns are being run by the same man: Frank Schubert, who was behind the successful effort to ban same-sex marriage in California. In the latest ad, a Massachusetts couple warns that innocent children will be taught about homosexual marriage in second grade. The claims of the first soft-focus ads have been fact-checked and revealed to be false—yet, Silk said, his campaign volunteers had already started hearing potential voters offering up the ads’ talking points as reasons to vote no on the measure. The campaign has put up a website debunking the NOM ads’ claims, but, of course, a website doesn’t reach as many voters as a television ad.

In addition, while Washington is a more secular state than much of the union, evangelical and Catholic church groups have been “very organized” about reaching their members, Silk said. They’ve shown special targeted videos, distributed bulletins to their membership, and preached from the pulpit. “They don’t have modern social networks,” Silk told me, “but they do have the ancient church network.”

The marriage-equality campaign, however, has outpaced its opponents in the money wars. Freedom to Marry has donated more than $1 million, much of it gathered through its “Win More States” fund. HRC has put in more than $700,000. Washington United for Marriage has raised nearly $12 million. Jeff Bezos of Amazon.com gave $2.5 million. Bill and Melinda Gates have given more than $600,000. New York City’s Michael Bloomberg has been giving $250,000 to every marriage campaign, Washington included. But having almost ten times as much money doesn’t guarantee a victory.

The pro-marriage-equality campaign has more than 14,000 volunteers phone banking and getting out the vote—a strategy it thought would be more effective than visiting each of the state’s three-plus million residents. It is active on 30 college campuses, where opinion is strongly on the side of equality. A number of iconic corporations with headquarters in Washington have also come out in favor of marriage equality, including REI and Nordstrom, which usually sit out contentious issues but have recognized that supporting same-sex marriage is a plus in recruiting employees. One organizer told me that the state’s highly contested governor’s race, as well as the chance to cast a vote for Obama, would be good news for the marriage-equality campaign, energizing the Democratic base.

Finally, the marriage-equality campaign has put its money into television and radio advertising to combat the NOM misinformation, hiring paid organizers to make still more phone calls, and ramping up its get-out-the-vote operation: identifying voters who will need support and encouragement to actually fill out their ballots and send them in. Yes, I did write “send them in.” Washington state votes entirely by mail—which means that when the polls close in the rest of the country, that won’t have happened in Washington. Ballots will be arriving and being counted for several days. “It will be hard on all of us,” Silk told me. “We’re steeling ourselves for a long five days.”

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