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
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
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
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
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?