May 18, 2012
By Jacob Combs
Since President Obama’s marriage announcement last week, there’s been a lot of great journalism on the effect of his new position and what it means for the President’s relationship with his key constituencies. In particular, some really thoughtful pieces have been written on the effect Obama’s decision has had opening up a dialogue in the African-American community not only on marriage, but on broader issues of LGBT equality and the shift in support amongst the community on marriage since the ABC interview.
With all of this press, though, as well as yet more polling on the growth of support for marriage equality, some ink has been spilled on the difficulty of reconciling such support with continued losses for the marriage movement at the ballot, as evidenced by last week’s passage of Amendment One in North Carolina.
Writing yesterday on the Equality Matters blog, researcher Carlos Maza deconstructs the “31 out of 31 states” talking point, pointing out that while it is nominally factual and sometimes quoted even by observers outside of the usual anti-gay circles, it is in the end an incomplete and even misleading way of looking at support for marriage equality.
Maza’s first point is perhaps the most persuasive in its simplicity: pointing to the passage of marriage bans in 31 states while leaving out the fact that the overwhelming majority of those bans were passed 8 years ago obfuscates the way that public support has grown tremendously in the intervening years. According to Greg Lewis, of Georgia State University, who has looked in detail at the data behind marriage bans, support for marriage equality has risen a full 16 percentage points since 2004, when 17 states passed constitutional amendments banning marriage equality. Another 27 states passed bans in 2006, along with three more in 2008, when public opinion was a good eight percentage points behind where it is now.
What that means, in essence, is that the 31 state statistic is mostly a good barometer of public opinion on marriage equality in the middle of the 2000s. Only four of those 31 states passed their bans in the last five years, as the rate of increase in support for marriage equality has dramatically accelerated. In a now infamously leaked memo, former Bush pollster Jan van Lohuizen found that support for marriage rose at a rate of about one percent per year before 2009, but has grown by five percent per year since then.
Secondly, Maza argues, constitutional amendments against marriage equality have targeted anti-gay states in which they are most likely to be passed. Data compiled by Greg Lewis demonstrates that 23 of the 29 states with the least support for marriage have passed marriage bans, whereas 18 of the 20 states with the highest support for marriage equality recognize legal rights for gay and lesbian couples.
The success of marriage amendments in these predominantly anti-gay states creates a talking point that obscures the fact that marriage equality gains are not exclusively made by popular vote alone. For instance, while it is true that California passed a marriage ban in 2008 when it went to a vote of the people, the California legislature (which was, of course, duly elected by a similar vote of the people) passed marriage equality not once, but twice. (Both times, it was vetoed by then-Gov. Arnold Schwarzenegger.) In the pro-”31 states” camp’s messaging, that makes California a state where the people stood up and defended traditional marriage, but that’s hardly the full story.
California’s Proposition 8 is also an excellent demonstration of Maza’s final strike against the 31 states meme: ballot amendments provide a unique opportunity for the deliberate dissemination of anti-gay misinformation. To demonstrate this point, Maza cites the following analysis from the Oregon Law Review (Vol. 87, 1025, 2008):
One can readily conclude that lawmaking by initiative, the manifestation of unchecked majority will, carries a high risk of producing bad laws. The “bad law” risk posed by the initiative is not simply that of generic poor policy. The absence of the deliberative process can leave the voters with profoundly inaccurate information. False information may be an unintended byproduct of the public campaign, or it may be deliberately disseminated for political advantage. Deliberate dissemination of false information can be a particularly potent and harmful strategy to agitate the majority against minority groups. Immune from legislative or executive review, initiative campaigns may rely on appeals to voter prejudice.
So what do we take away from all this? First, we can recognize that the 31 states meme is misleading at worst and thoroughly outdated at best. It’s something that our opponents cling to as they watch the tide of public opinion change, an argument that essentially says, people haven’t really liked gays and marriage equality in the past.
More importantly, though, it demonstrates just how significant it would be to blow up the anti-gay 31 states meme with a win on the state level this year. We have a good shot of getting a popular vote in favor of marriage equality in Maine this year, as well as Washington. With Obama’s newly announced support, Maryland will be in play as well. In Maine, we’ll be running a positive campaign with a ballot question that focuses on giving rights and doesn’t include the formulation of “one man, one woman” marriage that voters often respond to.
Even if we win in only one state in November, (if we assume that ballot measures will take place in Maine, Washington, Maryland and Minnesota), forcing the anti-marriage side to change their tune to “34 out of 35 states” could have a big effect. People may ask, what happened in that one other state? What made that one state different? And then, even though it may only be by a small margin, the balance would begin to shift in favor of full equality.