The Future of Marriage Equality
If you've ever read an article about a gay marriage ballot initiative, you've almost certainly seen an anti-marriage-equality advocate proclaim confidently that every time the question has been on the ballot, "traditional marriage" has won, and this time will be no different. That isn't precisely true—in 2006, Arizona voters rejected an initiative that would have banned both same-sex marriage and civil unions—but very nearly so. Ballot initiatives have banned same-sex marriage in 32 states over the last 15 years, so the "traditional" marriage side has some reason to gloat. But this fall, that run of success could come to a screeching halt. There are four marriage initiatives on the ballot in November, and at the moment it looks very possible, even likely, that on election night three more states will allow all their citizens to marry. We may well have reached an electoral turning point.
It has been a very good couple of years for advocates of gay rights. The military's "don't ask, don't tell" policy was repealed in 2011 (and the resulting catastrophe of morale predicted by conservatives failed to materialize, to no one's surprise). After a long period of "evolving," President Obama came out in support of marriage equality in May. This year's Democratic Party platform will for the first time include a provision pledging support for marriage equality. Nevertheless, 32 states still have discrimination written into their laws or state constitutions.
Yet this year's ballot initiatives differ from those in the past. Minnesota will have an old-style initiative of the kind that has passed elsewhere, asking voters to amend the state constitution to ban same-sex marriage in a place where same-sex marriages aren't legal to begin with (the vote will probably be close). But in three other states—Maine, Maryland, and Washington—voters will actually have the ability to bring marriage equality to their states. And if the polls are right, all three initiatives will succeed, bringing the number of states with marriage equality to nine (plus D.C.), with more almost certain to follow in the near future.
On the following pages I'll discuss what's happening in Maine, Maryland and Washington, review the history that got the country to this point, and consider what the future may hold for marriage equality at the ballot box.
None of the six states (plus D.C.) that allow same-sex marriage have it because of a voter initiative. In all those cases, it was either the state's highest court or the legislature that brought marriage equality about. That makes the initiative on the ballot in Maine this year unique, because it is the first one in which voters will be able to create marriage equality in the state all on their own. It does have a history, however. In 2009, the Maine legislature passed a law allowing marriage equality, which was signed by then-governor John Baldacci. But the following year, gay-rights advocates were shocked when opponents of marriage equality got an initiative on the ballot overturning the law and succeeded on election day despite polls suggesting the initiative would fail. The campaign was bankrolled almost entirely by one group, the National Organization for Marriage.
This year, however, the terrain looks much more favorable for marriage equality. Perhaps reflecting the national movement that has taken place and the intervening events of the last two years, the polls that have been taken in Maine clearly show the initiative heading for victory. A poll in March by the Democratic firm Public Policy Polling (PPP) showed voters there saying same-sex marriage ought to be legal by a margin of 54-41; a question using the language of the ballot measure (which explicitly states that no religious group or clergy will have to perform ceremonies for anyone they don't want to) was also favored by a 13-point margin. A WBUR poll taken in June found support for the initiative running at 55-36.
Maine also has what the other states with initiatives this fall lack: an organized pro-equality campaign. It has produced some extraordinarily moving advertisements focusing on family and commitment, speaking through the kind of Mainers who may have the deepest reservations about changing the law. In this one, a World War II veteran sits with his wife of 59 years and four generations of his family, talking about the importance of love and bravery. "Marriage is too precious a thing not to share," he says. If you can watch it without getting a lump in your throat, you have a hard heart:
In Maryland and Washington, the initiatives on November's ballot are slightly different. In both those states, the legislatures passed laws this year allowing for same-sex marriage, which their respective governors signed. Opponents gathered enough signatures to place on the ballot initiatives that would overturn these laws, which have not yet taken effect. Polls are looking positive; one in Washington (again from PPP, which does many state polls on questions like these) found marriage equality winning by 51-42—not an insurmountable lead by any means, but a lead nonetheless.
If marriage-equality advocates prevail in Maryland, they may have President Obama to thank. Thirty percent of the state's population is African-American, and polls have indicated a dramatic swing in opinions among black voters since Obama came out for same-sex marriage. One poll saw a shift between March and May, with the latter showing 57 percent of Marylanders saying they'd vote to uphold the law. "The movement over the last two months can be explained almost entirely by a major shift in opinion about same-sex marriage among black voters," the pollsters wrote. "Previously 56% said they would vote against the new law with only 39% planning to uphold it. Those numbers have now almost completely flipped, with 55% of African Americans planning to vote for the law and only 36% now opposed." This mirrored national polling; an ABC News/Washington Post poll after the President's announcement found that support for marriage equality among African-Americans had gone from 41 percent to 59 percent. The strategy employed in the past by advocates opposed to marriage equality—divide traditional Democratic constituencies of gays and blacks—has become significantly more difficult.
We have now reached a point where a majority of Americans support full marriage rights for same-sex couples, one of the most rapid transformations of public opinion on any social issue in American history. As this chart from Google Ngram (which enables one to track the appearance of phrases in books) shows, "gay marriage" as a topic of debate essentially didn't exist until the last two decades.
At first, the idea that same-sex couple would be permitted to marry seemed almost absurd to most Americans. But as soon as it began to be seriously discussed, legislatures moved to ban it, beginning in the early 1990s. Voters in Alaska banned gay marriage in 1998, and other states soon followed, with 13 bans passing in 2004 alone (there's a comprehensive list of all these pieces of legislation here).
But as more and more gay people came out of the closet (both on television and in real life) and politicians began to get asked about it, the national debate began an accelerating move to the left. For a time, Democratic candidates settled on the position that they favored civil unions, but not marriage rights, a stance that wasn't particularly tenable. Even at the height of anti-marriage-equality fervor in 2004, few thoughtful conservative observers thought this was a battle they could win over the long term. Since older voters are the ones most opposed to marriage equality and younger voters are the ones most in support, generational replacement means that the chances that a majority of the public in 2020, 2030, or 2040 will oppose same-sex marriage are essentially nil. And recently, support for marriage equality finally passed the 50 percent mark in nearly every poll that has asked.
Barack Obama will almost certainly have the distinction of being both the last Democratic presidential nominee to oppose full marriage equality (in 2008) and the first to support it (in 2012). The Republican party may take a bit longer to come around; its platform committee recently defeated a proposal to endorse civil unions, to no one's surprise. And a look at the map of current law on same-sex marriage shows a pattern that has long been familiar: one set of laws in New England and the West, and a different set of laws in the South and Midwest.
But just as with laws on interracial marriage, legalization of same-sex marriage is likely to spread toward the center and south of the country, though how fast is hard to say. In 2009, Nate Silver attempted to project how long it would take for each state to be ready to vote to allow same-sex marriage; the final two in the projection were Alabama in 2023 and Mississippi in 2024 (consider that Alabama didn't officially repeal its law banning interracial marriage until a referendum in 2000, and 40 percent of Alabamians voted to keep it). As Silver acknowledges, this kind of projection could well be wrong, but it does give us an idea of the path we're on.
Unless, that is, the Supreme Court intervenes. Earlier this year, an appeals court panel declared California's Proposition 8 unconstitutional, paving the way for the case to be taken up by the Supreme Court. The Supreme Court could also take up a lawsuit against the Defense of Marriage Act, which Congress passed in 1996 and Bill Clinton signed (provisions of DOMA have been declared unconstitutional by two federal judges). In either case, the Court could affirm discrimination of gay couples, outlaw it, or take some middle course that puts off a definitive decision. That all may hinge on whether Anthony Kennedy has come around to believing that marriage is an inalienable right that all Americans should enjoy. I wouldn't bet the farm on that—the Court seldom gets too far ahead of public opinion. But the direction of that opinion is unmistakable, as all but the most deluded conservatives activist will tell you. When the histories of this controversy are written, the years of 2011 and 2012 will be recalled as one of the key periods. And this November 6 will probably be one of the most important dates.
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