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OutRight: Beating Prop 8

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California’s same-sex marriage decision is everybody’s business.

DaleCarpenterBy Dale Carpenter

We have just two months to go before California voters will decide whether to amend the state constitution to prohibit marriage for gay couples. If the amendment passes, marriage will be lost for millions of people. The gay-marriage movement as a whole will be set back many years. (Full disclosure: I have contributed, so far, $1,000 to defeat Prop 8.) With that in mind, I have some warnings and suggestions for thinking about the fight over Prop 8.

1. Ignore the polls. A poll taken by the Los Angeles Times shortly after the California Supreme Court decision showed that 54 percent of registered voters would support the amendment, while only 35 percent would oppose it. That caused alarm. However, gay-marriage advocates have taken comfort in the results of two subsequent Field polls, one in late May and the other in July. Both showed 51 percent of Californians opposed to the amendment, 42 percent supporting it, and seven percent undecided. Another poll is due out in September.

My advice is to ignore the polls, act on the assumption that this will be a very close vote, and that as of now we’re behind. Here’s why.

Of the states that have voted on gay marriage so far, 27 out of 28 have banned it. Pre-election polls in those states have consistently underestimated support for gay-marriage bans, many by 10 percent or more.

Just eight years ago, a Field poll taken on the eve of a vote to ban gay marriage in California by statute showed only 53 percent support—within the margin of error. Hopes were high. But in the actual election, 61 percent of California voters supported it.  

Nobody knows for sure why polls undercount opposition to gay marriage. It may be that voters are afraid to tell pollsters they oppose something labeled a civil right. It may be that opponents of gay marriage are more energized to actually vote.

Whatever the reason, polls on the issue are unreliable. So a Field poll showing that only 42 percent support the gay-marriage ban probably means that about 52 percent support it. That means (1) it’s close, and (2) we’re behind.

2. Do it yourself. Up to now, the gay-marriage movement has been propelled mostly by litigation. This has given many the impression that courts will protect their rights, regardless of what happens in state legislatures and elections. Don’t bet on it.

If Prop 8 passes, it is extremely unlikely the California state courts will undo it. The next step would be to ask a federal court in California to overturn the ban on the ground that it violates the U.S. Constitution.

The federal courts in California include some of the most liberal judges in the country, so it’s possible gay-marriage supporters would win. But I doubt it. No federal court anywhere has held that there’s a constitutional right to gay marriage, or that a state can’t ban it. A decision in favor of gay marriage could go to the Supreme Court, which has given no indication it is ready to force gay marriage on the entire country. We either win on Election Day or we lose gay marriage in California for years to come. 

3. Expand the coalition. Many opponents of Prop 8 take solace in the fact that large numbers of Democrats will vote on November 4 to support Barack Obama. Democratic voters favor gay marriage.

However, the picture is more complicated than that. In polls, blacks are among the most likely to oppose gay marriage. To the extent Obama’s candidacy brings them out in large numbers, that bodes ill for defeating Prop 8. On the other hand, Obama has attracted lots of young people and they are the age group most likely to support gay marriage. However, people under 30 are historically the least likely age group to vote. What this means is that we can’t count on an Obama tide in California to beat Prop 8.

That suggests some special emphasis should be placed on expanding the coalition beyond the usual liberal interest groups and civil-rights organizations. Republican opposition to Prop 8 could be a key, with the GOP state governor and a few other elected officials leading the way. It also means enlisting independents and religious leaders. The campaign against Prop 8 should highlight their views.

4. It’s about marriage, stupid. In just about every vote on this issue so far, including the California vote eight years ago, gay-marriage supporters have tried to divert attention from the main question: marriage. They have issued ominous warnings about far-right conspiracies to trash constitutions, turn back clocks, and the like. That strategy has failed everywhere (except in Arizona, where the proposed amendment did go beyond banning gay marriage).

It doesn’t fool voters who know they’re voting on gay marriage and have a good idea how they feel about it. The California state attorney general recently changed the title of the amendment from “Limit on marriage” to “Eliminates right of same-sex couples to marry.” This was greeted as a great victory by gay-marriage advocates. But it is potentially a double-edge sword. On the one hand, few Americans like to “eliminate rights.” On the other, it reminds voters that we’re dealing with “same-sex couples” wanting “to marry.”

Thus, the merits of marriage for gay families must be squarely confronted. An intensive two-month campaign won’t win over diehards, but it may win enough others to carry the day.

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.

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