Referenda on same-sex marriage

[mmcirvin]

A nice explanation at Washington Monthly: If Same-Sex Marriage Is So Popular, Why Does It Always Lose at the Ballot Box?

This is still a key talking point of SSM opponents, that gay marriage hasn't won a referendum yet. There are two reasons for this: first, most of these referenda on constitutional bans took place years ago when there was less popular support than there is now, and, second, most of them have been in states where support was lowest. There was a wave of them in conservative states in 2004, which helped turn out the base for the presidential election. California in 2008 may have been the highest-profile case, but it was also exceptional.

He doesn't get into it there, but there are pretty obvious reasons for this. The votes on the subject have in most cases been for constitutional amendments to overturn a judicial ruling in favor of same-sex marriage, or to preempt an imagined one. Those campaigns are run by opponents. Proponents of same-sex marriage have indeed been ahead of the public-opinion curve, but they also usually have little motivation to legalize it in a referendum even if they possibly could. They generally regard marriage as a basic civil right that shouldn't be determined by plebiscite. Referendum campaigns are also generally ugly affairs, in which opponents have a strong motivation to drum up anti-gay fear in the general population.

Nowhere is this clearer than in New Jersey. Same-sex marriage has pretty clear majority support there in opinion polls. The legislature attempted to legalize it by statute, but it was vetoed by Governor Chris Christie, who said he thought there ought to be a referendum on it. Gay-marriage supporters refused to take the bait, saying that they'd work on overriding the veto in the legislature instead, even if it took longer.

2012 looks like it might be slightly different, since referenda are happening in the fall in three states where a win is actually possible, with varying degrees of likelihood. Washington state and Maryland have both passed laws legalizing same-sex marriage, but both states have provisions allowing opponents to force a referendum. If they can collect the necessary signatures (which is likely in both cases), the law doesn't take effect until the referendum passes.

Meanwhile, Maine is actually having a referendum to pass same-sex marriage by law, because they went the Washington/Maryland route in 2009 and the law was rejected by referendum then. I suppose there would be a referendum whether they went through the legislature or not.

I think I'd score Maine as the most likely place for a win, with Washington in second and Maryland third. Opponents are trying all the usual scare tactics in Maine, but the 2009 vote was fairly close, it was an off-year election (albeit an unusually high-turnout one), and opinion has continued to shift. One thing about Maine is, it's completely surrounded by jurisdictions where same-sex marriage has been legal for some time, so the more lurid fantasies about what happens in SSM states are probably not going to fly.

Comments

[jwgh]

Wow, I wonder what happened in Hawaii and North Dakota.

As an Arkansan by birth I always check to make sure that Mississippi is at the bottom of these sorts of lists. Yup, good old Mississippi, still making the rest of the South look comparatively respectable.

At the other end of the scale, the governor of my current home, Rhode Island, announced the other day that same-sex marriages performed in other states would be recognized here. "Chafee called his order an important step but said he would continue to press for Rhode Island to enact gay marriage." (We do have civil unions, in a legislative compromise that angered lots of people on both sides of the issue last year.)

[mmcirvin.livejournal.com]

Though it's just an executive order (and can therefore presumably be easily reversed), it's pretty impressive in that, in Rhode Island, another state is never very far away.

[mmcirvin.livejournal.com]

Hawaii is an unusual case (aside from all the ways in which Hawaii is obviously an unusual case), in that it was the very first state where a judge ruled that a same-sex marriage ban was unconstitutional, way back in the early 1990s. So they went through the stages of a judicial ruling and constitutional-amendment battle very early on, at a time when gay marriage was generally considered way out there. I think the ruling was stayed while they battled it out, over a period of several years, but there was an amendment in 1998, which was a little unusual in that it didn't ban same-sex marriage but gave the legislature the ability to ban it.

That might conceivably have made opposition a little more entrenched by 2004 than it would have been otherwise, in what was generally a liberal state. I'm thinking the subsequent evolution there is best seen as a regression toward average blue-state sentiment.

[mmcirvin.livejournal.com]

...Possibly as a result of all that, Hawaii was also the very first state to have any kind of legal recognition for same-sex couples, in 1997. I'd completely forgotten about that, possibly because the Vermont civil-union fight in 2000 was so higher-profile.

There was an early-adopter effect: it was a reciprocal-beneficiary status that was pretty weak by modern standards (they've had civil unions since the beginning of this year). California passed domestic partnerships in 1999, but in that case they were gradually strengthened over the years to the point where they're effectively civil unions.

[agent-mimi.livejournal.com]

Mostly off-topic, but creepy: One of the loudest Teapublicans specifically representing the religious right in our city council is Bob Reader, who was on my front porch about 3 hours ago. I'd love to tell you why, but I don't know. He arrived in his truck covered with his voting signs and rustled around on the porch for a bit, then left before I realized what was going on. Came back, parked across the street, walked around then left again. No campaign literature, no knock on the door, nothing.

Since I'm out by both name and sexuality on the local newspaper forums, populated by local police and politicians (none of whom are particularly fond of me), I admit I'm concerned. That's how bad it's gotten in Kansas.

I know that trollish lady on James Nicoll's journal says things will change in 20 years so what's the worry, but this is the worry. Obviously, change is happening in more urban states where most of the population is. It won't happen in the rest of the country for a very long time.

[agent-mimi.livejournal.com]

I meant to add that despite the significant statistical change in percentage of people against gay marriage, things have gotten bad here because those who are anti-gay are more upset, obsessed and radical about their hate.

[mmcirvin.livejournal.com]

What makes it worse is something I like to harp on: there are stark generational differences everywhere, but old people are more politically powerful than young people because it's easier for them to vote, and they vote in every election. In places like Massachusetts, even many in older cohorts have changed their minds, but there's not much impetus for them to do so in Manhattan, Kansas.

As I said somewhere on Scalzi's blog, I think the state-by-state campaign on this particular subject is going to hit a brick wall once it's won all the coastal and Midwestern blue states, and then there will be a long pause. And I don't think the Supreme Court is going to do anything so huge as legalize same-sex marriage in all fifty states until the state bans are almost all gone and there's a clear national consensus. I'd love to be wrong.

[agent-mimi.livejournal.com]

It's possible that a rather heady court case will make its way to the SC and force the issue sooner rather than later. I don't know how likely it is, though.

[mmcirvin.livejournal.com]

The California Prop. 8 case (Perry v. Brown) will make it there sometime this year, but the reasoning there has so far had to do with the narrower question of whether a state can take something deemed to be a basic right away after judicially granting it. So even if Prop. 8 goes down, which it may or may not, the widest implication will probably just be that states can't ban gay marriage after they've actually started granting legal licenses.

I do not think the current Supreme Court lineup would override all state gay-marriage bans. You never know, because Anthony Kennedy seems to swing more liberal on gay rights than on other issues, but it'd probably take at least one or two more liberal appointees. As it is, Romney has a fair chance of winning the election and appointing two or three more Scalia clones, which would lock in the right-wing majority for decades.

[mmcirvin.livejournal.com]

...well, OK, maybe not this year. I think it'll end up at the Supreme Court soon enough, though.

[mmcirvin.livejournal.com]

Also, I thought the person on Nicoll's LJ was a dude, but hadn't thought about it much.

[agent-mimi.livejournal.com]

I thought female because of something they said a few months ago during their first "stop complaining about anti-woman legislation because it will go away eventually" fit. But I know from past experience that it will lead to tears to try to find the post I'm talking about, and it would do me good to stop assuming gender so much anyway.

[chicken-cem.livejournal.com]

Thank you for this thoughtful analysis ... North Carolina was so depressing.

[mmcirvin.livejournal.com]

As you can see from the chart, a win in NC was never likely. I admire the campaign against the amendment, though; they were obviously playing the long game.