These days, it’s easy to see marriage equality as inevitable. For the last two years, at least half of Americans have supported legalization, which means support has just about doubled since the Defense of Marriage Act was passed in 1996. Views on gay marriage have changed dramatically in the last 15 years, particularly among young people. And support is increasing across-the-board, not just in the blue and mostly coastal states where same-sex marriage is now legal.
While most of the 30-odd states that have recently passed gay marriage bans did so with strong popular majorities, those majorities are eroding quickly, according to Gregory B. Lewis of Georgia State University. Writing in the American Prospect, Lewis points out that most people already support gay marriage in at least three states that have recently banned it, and another four are now dead-heats.
And that number is increasing. Across the country, opposition to gay marriage has dropped by about 16 points since the first and largest wave of state bans in 2004, Lewis writes. Even more surprising, there are no states where support for gay marriage has not gone up. Even in places like Mississippi and Kentucky—both of which have passed bans by wide margins—support grows at an average of 1 or 2 percent each year. But for gay marriage supporters, the tricky part is translating these new attitudes into actual reform.
Yes, Americans’ views are changing quickly, but laws in most states are not likely to keep up—at least not for a while. While most people in Arizona or Nevada will probably support same-sex marriage within a few years, state laws may be slow to reflect that. Take Nevada. Four years after voters approved a constitutional amendment banning gay marriage in 2002, the state tightened its voter initiative process. Today, getting an amendment passed there requires either two separate ballot initiatives over two separate election cycles—OR, a vote in the legislature, another vote in the legislature after a statewide legislative election, and then a ballot initiative. So rescinding the state ban isn’t impossible, but it’s not all that likely either. Critically, Nevada is one of six states that recently tightened its amendment rules after approving a marriage amendment.
Another issue is GOP dominance. Republicans currently control 27 state legislatures, and another seven are evenly divided. Most states require legislatures to approve or initiate constitutional amendments (often by wide margins), which may significantly complicate reform efforts. Even if a handful of states reverse their Republican majorities in November, overturning a constitutional amendment is a long process, and requires the kind of tough strategy that the GOP still seems much better at.
Colorado is a case-in-point. Despite passing a marriage amendment in 2006 by an overwhelming majority, most Coloradans now support gay marriage (a number that’s growing by 3 or 4 percent a year, according to Lewis). What’s more, Democrats control the state senate, the governor’s office, and are one vote shy of a tie with Republicans in the house. Yet a bill introducing civil unions has failed in the General Assembly three times since 2011. In the latest go-round—a special session that the governor called after being inspired by Obama’s May 9 remarks—Republicans successfully filibustered to avoid a vote they probably would have lost.
Washington’s not been much help either. Obama’s landmark statement may have been a symbolic victory for gay marriage supporters, but it also signaled the president’s continued unwillingness to address the issue nationally. Having already backed away from the Defense of Marriage Act, Obama reiterated his commitment to a states’ rights approach in his May 9 interview. Over the following week, most observers pointed to how the statement would impact Obama’s ability to raise money, energize his base, and provoke Mitt Romney into appearing out of touch. If the interview does have a major impact, this is where it’s gonna happen.
On the other hand, many gay marriage advocates have pointed to the courts as the best way forward. But even then, success may be difficult. It was the 2003 Massachusetts Supreme Court decision that set off wave after wave of constitutional amendments barring gay marriage. And the 9th Circuit Court of Appeals ruling earlier this year was similarly narrow in its impact, applying only to California law, but not to similar bans in other 9th Circuit states like Arizona or Oregon. As Robyn Hagan Cain points out in FindLaw, this was probably because the judge wanted to keep the case out of the Supreme Court, which is where it would logically go at this point. By shying away from civil rights or equality issues in his decision, Judge Stephen Reinhardt may have been trying to avoid a high-stakes showdown with the conservative Roberts Court. If the issue goes there, things could get even trickier for gay rights supporters.
In the long run, it’s still pretty easy to make the case that nationwide gay marriage is going to happen. Most of the players in the battle now (including Obama) belong to a generation that sees same-sex marriage as a contentious issue. The question is how many roadblocks will remain when the next generation takes over?