May 28, 2013

Majority may still rule against gay marriage

With bans enshrined in constitutions, opposition states may be difficult if not impossible to sway.

By JAKE GROVUM Stateline.org

Momentum in the states to allow gay marriage may be about to stall.

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Opposition to gay marriage remains strong in states such as Texas where dozens of proponents attended a February 2001 rally at the Capitol in Austin in support of legislation that would limit marriage to between a man and a woman.

Associated Press file photo

Recent victories have given same-sex marriage advocates hope that the tide has turned in their long-running fight for marriage equality, given the number of states approving same-sex marriage has doubled since Election Day 2012.

But 36 states still ban such unions, and there's little sign of change in those states anytime soon.

While national public opinion polls show Americans warming to same-sex marriage, voters in many states remain staunchly opposed. And even where the politics and sentiment have changed, bans enshrined in many state constitutions could prove especially difficult to overturn -- exactly the reason opponents pushed for constitutional measures in the first place.

In some states, public opinion is overwhelmingly opposed to same-sex marriage. In Kentucky, a poll found nearly two-thirds opposed to same-sex marriage; just one in three Democrats supported it. In Montana, about half of voters opposed legalizing gay marriage. Both states have Democratic governors and Republican control of the legislature. In Louisiana, meanwhile, one poll found same-sex marriage support at just 29 percent.

The trend follows regional lines. Aggregated data from four 2012 surveys by the Pew Research Center found gay marriage support in New England at 62 percent -- those states all allow the unions. In the central south (Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee and Texas), opposition was 56 percent. Each of those states has a gay marriage ban.

The disparate trend has led to a patchwork of laws covering same-sex marriage, civil unions, domestic partnerships and even benefits for state workers. The Supreme Court is weighing a pair of cases that could shift the debate. But absent a broad ruling from the justices when the decision comes, likely in late June, the current landscape will probably remain static.

The issue facing supporters is straightforward: In many states where supporters could win, they already have. Now they'll be taking their fight to more challenging territory. Even where they see favorable odds, advocates face other obstacles -- particularly the 30 states where bans of same-sex marriage are in their constitutions.

Colorado, which legalized civil unions earlier this year, is a key example. Voters there approved a constitutional ban on same-sex marriage in 2006. Changing it requires either a signature drive to get a referendum on the ballot or a supermajority in each chamber before it could go to voters.

Those hurdles mean that despite Democratic majorities and public support for same-sex marriage in the state, advocates had to settle for civil unions this year. House Speaker Mark Ferrandino, the state's first openly gay lawmaker, said that a same-sex marriage referendum optimistically could be sent to voters by the end of the decade.

"I would love to be able to do marriage," Ferrandino said. "But given our constitutional amendment, the farthest we could go was civil unions."

More broadly, Ferrandino said Colorado offers a cautionary tale about constitutional amendments. "It's very difficult for the legislature to change with the changing times," he said. "And there's nothing changing quicker than attitudes on equality" for the gay community.

Colorado isn't alone. More than half the states require a supermajority for any amendment to pass. Twelve require that a proposal pass two consecutive legislative sessions. And in many cases, the amendment is eventually put to a popular vote before enactment, raising the prospect of an expensive, hard-fought statewide campaign that can be decided on turnout or other ballot items. Democrats, for example, tend to vote more heavily in presidential election years.

That's what same-sex marriage supporters face in Oregon, where the state allows domestic partnerships for same-sex couples but where marriage for them has been banned constitutionally since 2004. Activists are in the early stages of getting an amendment on the ballot for 2014, a process that will require more than 100,000 signatures -- all before the actual campaign begins.

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