Marriage Equality: Today, and Tomorrow
I’ve been away due to other commitments, and I’m trying to make time to write here again. There’s a neat symmetry to this post. The blog was formed at the time of the launch of the Yes Means Yes book, written entirely by contributors, in the Fall of 2008, and my first post was about the passage of Prop 8 in California. There was huge progress on marriage equality between the Massachusetts Supreme Judicial Court’s Goodridge decision in 2003 and Prop 8: but it wasn’t enough. At the time, judges had extended equal marriage rights, but never a state legislature or a referendum.
Since then I’ve written a lot about marriage equality, and like many progressives I have read Nate Silver’s Fivethirtyeight pretty closely. In addition to modeling elections, he and his crew have modeled other political issues, and I’ve relied in the past on his statistics in talking about the progress of public opinion on LGBT issues.
Another Presidential election has passed, and as it has been every time since 2004, marriage equality was a ballot issue. The opponents made a big deal out of their unbeaten record in referenda, especially after state legislatures started passing marriage equality bills. In a constitutional republic which specifically relies on the judiciary to protect fundamental rights from trampling by hostile majorities, it makes no sense to stand on popular will and insist on a vote on minorities’ humanity. But that was their argument. And now they’ve lost the unbeaten streak. Three marriage equality referenda and one bar were up, and all went the right way.
Where We Stand, and the Trend
So we know where we stand. Five of the six New England states, New York, Iowa, Delaware and Washington plus D.C. all have marriage equality. Some states have legal controversies or have friendly legislatures but unfriendly governors or for some other reason are just about there, but we have nine states and D.C. right now.
Where are we going? Well, Nate Silver modeled it for us. Nate isn’t always right, but he always has a sensible way to look at the data, so I’ll start there.
Silver, writing in April 2009, predicts the last year in which a referendum barring marriage equality would pass. Here is the result of that model:
Asterisked states already have a bar in state law or constitution.
If we assumed that whether in court or the legislature or by referendum the order of progress would broadly follow the public opinion at the time of Silver’s data, the list would have some similarities to how things have been going. Of the eleven states in the top bracket (that is, the ones where the voters would quit opposing equality soonest), seven are done deals. The other two states that have accepted equality, Maryland and Iowa, are a little farther down the list. Iowa was a matter of a judiciary ruling on rights, not a referendum. But Silver had Maryland in the 2012 block, which … proved to be just about right. Maryland went by direct voter mandate for marriage equality in 2012.
So what’s the hold-up with the rest of the 2009 bracket? They’re late! Those are Nevada, Alaska, Oregon and Rhode Island. The New York Times weighed in on the progress of marriage equality just this morning, and Rhode Island came up. Erik Eckholm, writing for the Times, said this:
Though it remains unpopular in the South, rights campaigners see the potential for legislative gains in Delaware; Hawaii; Illinois; Rhode Island; Minnesota, where they beat back a restrictive amendment last Tuesday; and New Jersey, where Gov. Chris Christie vetoed a bill to legalize same-sex marriage in February.
Rhode Island is the last of the New England states to restrict marriage to a man and a woman. It had a strongly opposed governor in Don Carcieri until 2011, but now with Lincoln Chafee in the top executive position it is just a matter of having the votes in the state Senate, which this election probably locked up. That ought to happen soon.
Oregon is another one that ought to happen soon, between California where Prop 8 is unlikely to go the same way again (it has not returned to the ballot only because the Ninth Circuit decision is making its way to the Supreme Court and nobody wants to interrupt that) and Washington which just adopted equality. But Nevada seems like a more open question, and Alaska a much longer shot to me. The reason for that is that the fivethirtyeight data was early and relied heavily on religion as a proxy. Not too long after Silver’s fivethirtyeight post, someone else who writes for fivethirtyeight, Andrew Gelman, ran a state by state analysis, and it looked like this (I linked it on Gelman’s site because the pre-New York Times fivethirtyeight archives don’t always have linked charts and tables intact, though Gelman did also put this up on fivethirtyeight at the time):
These figures make political sense to me. For example, support in New Jersey is high in that chart, where the population is ready to get it done. In New Jersey, it’s all about how Christie wants to play it. He’s the most likely GOP nominee for President in 2016. He clearly vetoed it the last time not out of any general conviction but in the belief that if he signed the equality bill he would damage his chances in the primary scrum. But a funny thing happened on the way to 2016: he threw his arms around Obama after Sandy, enraging the GOP base. With all the “whither the GOP” talk and Christie’s natural loose-cannon propensities, I think it is entirely possible that he will sign a bill if presented to him in 2014 saying that marriage is fundamentally a state issue and New Jersey can and should have different laws than Mississippi. That’s not what I think, but that’s what I think Christie could say. He reads the polls, too. He knows that marriage equality is a winning position with moderate voters. The question is, can he run as a centrist — a bombastic, cantankerous centrist — and beat the culture warriors’ last stand candidates? He’s completely mercenary. His answer to that will determine his position.
Looking at the Gelman figures, several of those named in the Times story were already at or near 45% in early 2009: Hawaii, New Jersey, Delaware and Rhode Island. Illinois and Minnesota lagged. (Gelman’s figures also bear out the fivethirtyeight model position for Nevada, which is in that at-or-near 45% point, but not Alaska).
The Supreme Court
Won’t the Supreme Court come along and fix all this in the California Prop 8 case? First, I don’t think they will. Second, I don’t think we want them to. The second part is harder to explain, and I’ll say some bellicose things. The first part is easy, because I already made my prediction. In a post titled Kennedy’s Ratchet, I said that Kennedy (the only swing vote where the current court has four committed votes each for and against marriage equality) will take the map laid out for him by the Ninth Circuit and hold that, once a state extends equal marriage rights, it would be unconstitutional to strip them. That allows him to avoid going down in history as voting with the bigots, while also not being the judge who made the South accept gay marriage. It’s not what I’d do, but it’s what I’m very confident Kennedy will do.
Why don’t we want the decision that, say, Sotomayor or Kagan would write instead? I remember Evan Wolfson saying in the late 1990s that the model we don’t want is the death penalty, where the Court gave opponents everything they wanted, an outright bar, in 1972, but by 1977 it was back and full steam ahead. There was no groundwork laid for that, the battle wasn’t won in the public mind and the Court preempted it. I’m reminded of the historical example of Germany in the First World War: the public didn’t know they were beat and the collapse seemed so sudden that the loss never really sank in, leaving the German public spoiling for another round. This is the mean part; one old sixties radical I know says (quoting Michener, I think) that when you’re in a fight and you get a guy on the ground, you kick him in the face, because if you don’t, he’s going to look at his nice clean face when he shaves and start to think he almost beat you. Ted Olsen’s eloquence can’t deliver that. The Supreme Court can’t deliver that. What delivers that is the ground game, going state by state and changing the minds and getting the voters to the polls.
It’s not that there’s something wrong, in theory, with winning in the courts. That’s how it ought to go. It shouldn’t be necessary to have the majority agree to protect the minority in matters of fundamental rights. But this is a practical analysis. If the Court preempts the battle, it may take much longer for the cultural question to be well and truly settled. If this is won on the ground first, if the opponents know that their state, their children and even their friends and neighbors are against them, they’ll understand that they didn’t lose because nine judges decided, but because they don’t have the numbers and there’s nothing they can do about it. I don’t want the ref to stop this one. I want the opponents to finish the fight staring up at the lights.
So this is my prediction. Dark blue is where marriage equality has been achieved, and the light blue is where I think it will in the next five years. As I said, I think the Supreme Court will resolve the 9th Circuit case, Perry, by holding that states can move forward on any timeline they want, but never back. So in five years, I’m predicting that 18 states with a lot of the population, covering the entire Pacific coast except Alaska and the entire Atlantic except the South, will have gone for marriage equality. The US map plays tricks on the eyes, the less densely populated states taking up a lot of area. Once the map looks like that one, the next thing to happen is that the upper midwest, the Obama firewall states of Michigan, Wisconsin and Ohio, join the move. And then opposition to equality will be a Southern and Western regional issue. Eventually, whether with a change in generational sentiments or otherwise, that resistance will be overcome as well.
That’s how I see it.