Interesting maps to compare

[mmcirvin]

Well, the 2012 election put to rest once and for all the idea that Americans will never vote to legalize same-sex marriage. In that light, it's interesting to compare these two maps from Wikipedia:

Legal status of same-sex marriage in the US, by state
Public opinion of same-sex marriage in the US, by state

Public opinion is way out ahead of the law. In California, Oregon, Colorado, Michigan, Ohio, and Florida, there's majority public support for same-sex marriage and a constitutional ban. That's a substantial chunk of the country. In the latter three, the bans are so strong that they also prohibit civil unions.

It was always pretty clear that the great wave of state-constitutional bans in 2004-2008 was a rear-guard action to lock in opposition before it evaporated, but I didn't expect it to happen so quickly. The wave of SSM legalization will probably slow down a bit in the near future just because of the greater procedural difficulty of amending state constitutions.

Comments

[jwgh]

It'll be interesting to see what the Supreme Court does with all of this.

[mmcirvin.livejournal.com]

My guess is they'll stay as safely behind the public-opinion curve as they can. They may well overturn Section 3 of DoMA, so that legal state marriages get federal recognition. They'll leave Section 2 alone.

On Prop. 8, they'll either uphold it, or overturn it on narrow grounds basically applicable only to California. I can't imagine this Court declaring all state bans federally unconstitutional.

[jwgh]

It seems weird that they took the cases on at all, though, if they weren't at least thinking of doing something pretty radical. In the Prop 8 case in particular they could have just let the lower court's ruling stand.

[mmcirvin.livejournal.com]

I think that denying cert for all the DoMA cases would create a terrible mess, in which marriages get federal recognition in some circuits but not others. They had to take on at least one, and the one they picked was probably one of the most blatantly unjust ones, in which a widow had to pay inheritance tax on shared property when her wife died. That's an encouraging sign. (Though I suppose it could go disastrously wrong and they could just declare the inheritance tax unconstitutional.)

Prop. 8 is another story, since the circuit-court ruling was so narrow and applied to no other state's situation; denying cert would have been a perfectly reasonable outcome. That might suggest they want to negate that decision and uphold Prop. 8. But it may just be that they don't know how they're likely to rule, but felt the issue was important enough to deserve Supreme Court consideration one way or the other.

[chicken-cem.livejournal.com]

This is going to be a big year, one way or another.

[mmcirvin.livejournal.com]

You sure were right about that!

Maybe not in California...

[jmkelly.livejournal.com]

...in two ways: first, election results and public opinion in California are two different things: the electorate is more conservative than the general public. Second, it's ridiculously easy to amend California's constitution: a simple majority of the voters can do it (as they did with Prop. 8). So all we need to repeal Prop. 8 is >50% of the vote--but to get that, we'll need something like 66% of popular opinion.
It is a puzzle why the SCOTUS took on the Prop. 8 case. If all they wanted to do was tell California it couldn't judicially recognize a right and violate it six months later, they could have just let the circuit court's decision stand. I doubt they have the nerve to overturn all of Prop. 8's evil twins. Maybe the conservative justices think they have a chance of getting a majority to reverse the circuit court's decision (perish the thought), and the liberals are willing to take them on. Maybe Justice Scalia wants revenge for Judge Walker's creative quotation of his dissent in Lawrence v. Texas in the decision that overturned Prop. 8 (quick description here (http://jmkelly.livejournal.com/221356.html); very briefly, Scalia argued that if we couldn't outlaw gay sex we couldn't outlaw gay marriage, and Walker took him at his word).

Re: Maybe not in California...

[mmcirvin.livejournal.com]

My impression was that on Prop. 8 itself, the discrepancy between the vote and the public polling was not that large: maybe big enough to swing the result, since it was so close, but nothing like 16%.

Of course, 2008 was an unusually high-turnout election everywhere, which might have made turnout effects smaller than they'd be in something like a special or primary election.

Same-sex marriage opponents claimed prior to the 2012 election that there was a consistent Bradley-like effect of something like 6 or 8 points on this issue: the vote would always be skewed against SSM to that degree relative to election-eve polls. They were arguing mostly on the basis of the state constitutional-amendment votes in 2004 and 2006. But that wasn't the case in 2012 at all.

Re: Maybe not in California...

[mmcirvin.livejournal.com]

...or is the difficulty in California that of amending the constitution in such a way that it won't just be amended right back again in the next low-turnout election? I can see that being a problem.