The November results move momentum to the states.
The biggest news from the election was the Democrats retaking control of both the House and the Senate. I don’t expect national Democrats to do much positive on gay issues, however, and probably nothing on the issue of recognition for gay relationships.
Much more important to the politics of gay marriage than the national election results are the results in (1) popular votes on state constitutional gay-marriage bans and (2) the results in state legislative races. Both suggest that we may be headed for more state legislative action toward the recognition of same-sex relationships in the form of civil unions and domestic partnerships (less so, for now, in the form of full marriage).
There are two huge stories in the votes on gay-marriage bans around the country. First, for the first time ever, a gay-marriage ban was rejected by the voters of a state, Arizona. That’s not the same as an endorsement of gay marriage, but it is an unprecedented and potentially significant defeat for opponents of gay marriage.
Still, I am at a loss to explain the precise reason for the result in Arizona. It could have been driven by demographics, individual state issues, differences in the pro- and anti-amendment campaigns from others around the country, or the generally more libertarian political climate in the state.
Second, average support for the bans was down dramatically from previous elections. In the seven states where the amendments passed, average support was down to about 61 percent. That’s about 8-10 percent less than average support for these amendments in past elections. Of the eight states, support for the bans was held under 60 percent in five; that had previously happened in only one state out of 20. Prior to this election, the low-water mark for a ban was 56 percent (in Oregon in 2004). Three states (Arizona, Colorado, and South Dakota) were at or under that mark this year.
What produced these surprisingly good results for gay-marriage supporters? Several things may be happening:
• Voters are getting habituated to the idea of gay marriage, even if they don’t quite accept it, and so are less likely to vote to ban it (and similar unions).
• Voters are starting to catch on that these proposed amendments are about much more than gay marriage. They ban civil unions (which pluralities now favor), domestic partnerships, and potentially much, much more. And they do not simply stop judges from imposing gay marriage; they apply even to state legislative action.
• Individual state races and issues skewed the results. South Dakota, where support for the amendment was an astonishingly low 52 percent, is the most obvious example. There, the result was probably affected by the presence of a sweeping anti-abortion ballot measure, which brought out lots of pro-choice and anti-anti-abortion voters.
• It was a very bad night for Republicans for reasons unrelated to gay marriage (the Iraq war, perceived corruption), which produced a drag on support for the amendments. In almost every state (except Arizona) the marriage bans did better than most Republicans in statewide races.
Gay-marriage supporters will emphasize the first two factors. Opponents will emphasize the second two. I do think it’s fair to say that gay-marriage bans are starting to fizzle as a potent political weapon. Just as gay-marriage litigants are running out of friendly state judiciaries, gay-marriage opponents are starting to run out of very friendly state electorates (though I do think we will end up with about 32-35 states with amendments when all is said and done).
The declining potency of this issue will likely have two effects. First, it will probably embolden more state legislators to reject state amendment proposals, preventing them from reaching the ballots in states where legislatures must approve them.
Second, the erosion of public support for marriage bans also suggests, I think, that both sides are going to have to start focusing more on legislation in the states. Neither will be able to deploy the trump card of judicial supremacy, on the one hand, or constitutional amendment, on the other. That’s a healthy development since it means we’ll have more actual legislative debate and compromise on the issue, outside of the cool confines of judicial chambers and the hothouse of popular referenda. It also means incremental change will be permitted, where judicial action and constitutional amendment on this issue entail a priori, all-or-nothing policymaking.
On that score, this election produced signs that the tide will turn in the legislative arena toward more recognition of gay relationships. More than 275 state legislative seats and nine state legislative chambers switched hands from the Republicans to the Democrats. Six governorships also switched to the Democrats. All of this means that Democrats now have complete control—holding both legislative chambers and the governorship—in 15 states.
This bodes well for state legislative experimentation toward the recognition of gay relationships, since Democrats tend to be more sympathetic toward such reform than are Republicans. It does not guarantee progress, since many Democrats will be afraid to back recognition, but the election does make it more likely. Moreover, for now, state experimentation, where it occurs, will likely take the form of domestic partnerships and civil unions rather than marriage.
But especially in those states where Democrats now have total control over state government, there is no excuse not to begin doing something. Gay voters and donors have paid, with their loyalty and their money, for some action from the Democrats.
Writing from the conservative side, Dale Carpenter began his column for OutSmart in 1994, when he lived in Houston. Now residing in Minneapolis, Carpenter is a University of Minnesota Law School professor.